ATTY FERNANDEZ VS CA (the dates are
important) Rule 11 sec 1 in relation to Rule 22
sec 1 and 2
Note: The only issue related to this topic is
the computation of dates (so the dates are very
important). the 2 other issues will be a review on
the topic of jurisdiction.
FACTS:
A complaint dated 23 January 1993 for
unlawful detainer was filed by private
respondent Concepcion Olivares against the
herein petitioner Jesus Fernandez. The
Metropolitan Trial Court of Manila (MeTC),
Branch XV, dismissed the Complaint for lack of
sufficient cause of action.
Olivares appealed to the Regional Trial
Court (RTC) of Manila, Branch 46, and the latter
reversed the MeTC, ordering Fernandez to pay
rental arrearages, attorneys fees, litigation
expenses and costs in a decision.
On 28 June 1994, Fernandez received a
copy of the decision.
On 12 July 1994 or 14 days after receipt
of the decision, he filed a Motion for
Reconsideration.
On 29 November 1994, Fernandez
received an order denying his motion for
reconsideration.
On 01 December 1994, Fernandez filed
with the Court of Appeals a Motion for
Extension of Time to File Petition for
Review which was granted.
Said resolution was received by
Fernandez on 12 December 1994.
09 December 1994, Fernandez filed a
Motion for New Trial before the RTC of
Manila citing newly discovered evidence
of receipts proving his rental payments.
Fernandez filed on 29 December 1994
in the Court of Appeals a Motion to
Withdraw his Petition For Review which
the court duly noted in its resolution
dated 19 January 1995.
06 February 1995, the RTC denied the
Motion for New Trial. It explained that
when Fernandez went to the Court of
Appeals and filed a Motion for Extension
of Time to File Petition for Review, and
the Court of Appeals accordingly acted
on the same by granting the extension
sought, jurisdiction of the Court of
Appeals over the parties and the subject
matter had already attached.
Fernandez filed a motion for
reconsideration which the trial court
denied in its Order dated 14 December
1995.
RTC granted the Motion for Execution of
Olivares and denied the Motion for
Reconsideration. A writ of execution
was in fact issued by the RTC on 31
January 1996.
Fernandez filed a Petition for Certiorari,
Prohibition and Mandamus with prayer
for the issuance of a writ of preliminary
injunction and temporary restraining
order, before the Court of Appeals.
The Court of Appeals temporarily
restrained the respondents from
proceeding with the enforcement of the
writ of execution, so as not to render
the petition moot and ineffectual
pending fuller consideration thereof, as
well as for the preservation of the rights
of the parties. In a decision dated 16
May 1997, the Court of Appeals denied
the Petition and affirmed the stance of
the RTC. It ruled:
When petitioner herein elected
to file before this Court a motion
for extension of time to file
petition for review, he in effect
opted to appeal the adverse
decision of the Regional Trial
Court of Manila to the Court of
Appeals. This is so because
appeal to this Court is perfected
by petition for review, where
judgment was rendered by the
Regional Trial Court in the
exercise of appellate
jurisdiction. This Courts
assumption of appellate
jurisdiction resulted initially in
the issuance of the resolution
granting petitioner an extension
of fifteen (15) days within which
to file the petition for
review. Since this Court
 acquired appellate jurisdiction,
the only proper thing for the
court below to do was to deny
the motion for new trial.
ISSUE:
1. Whether or not the mere filing by a
petitioner of a motion for extension of
time to file a petition for review
automatically divested the RTC of its
jurisdiction over the case, as to entertain
a motion for new trial.
2. What is the legal effect of the filing by
Fernandez of a motion for new trial
before the trial court?
3. What is the proper computation of the
period to file a motion for new trial?
(Ultimate issue in relation to the topic)
SC RULING:
1. No, it did not divest the trial court
jurisdiction.
In general, in order for a Court to have authority
to dispose of the case on the merits, it must
acquire jurisdiction over the subject matter and
over the parties. Jurisdiction over the subject
matter, or the jurisdiction to hear and decide a
case, is conferred by law. Jurisdiction over the
person, on the other hand, is acquired by
service of summons or by voluntary appearance.
The filing of motions seeking affirmative
relief, such as the motion for extension of time to
file petition for review filed by Fernandez in this
case, is considered voluntary submission to the
jurisdiction of the court it may seem at once
apparent that the Court of Appeals had in fact
acquired jurisdiction over his person. It has
been repeatedly held that an appearance in
whatever form, without expressly objecting to
the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over
the person.
As we are dealing here with the jurisdiction
of an appellate court, additional rules are
required for jurisdiction to attach therein, to wit:
(1) the petitioner must have invoked the
jurisdiction of the Court of Appeals within the
time for doing so; (2) he must have filed his
petition for review likewise within the time for
doing so; (3) he must have paid the necessary
docket fees; and (4) the other parties must have
perfected their appeals in due time.
The Rule requires that in an appeal by way
of Petition For Review, the appeal is deemed
perfected as to the petitioner upon the timely
filing of the petition and the payment of docket
and other lawful fees. The law and its intent are
clear and unequivocal that the petition is
perfected upon its filing and the payment of the
docket fees.
In this case, Court of Appeals has not yet
acquired jurisdiction over the case because
Fernandez merely filed a motion for extension of
time to file petition but not the petition
itself. Withal, sans the petition, it cannot be said
that the Court of Appeals has acquired
jurisdiction over the case as to say that the trial
court is without authority to act on a motion for
new trial. When Fernandez filed the motion for
extension of time to file petition for review,
jurisdiction of the Court of Appeals had not yet
attached, such that his failure to file the petition
itself would normally have the effect of rendering
the decision of the lower court final and
executory.
2. Assuming that Fernandez filed his
motion for new trial on time, the trial
court still had jurisdiction to rule on the
matter as the jurisdiction it originally
acquired had not yet been lost.
The appellate jurisdiction of the trial court is
to be juxtaposed with its residual jurisdiction as
set forth in Rule 42, Section 8(a), 3rd paragraph
of the Rules of Court. Before the Court of
Appeals gives due course to a Petition for
Review, the RTC retains jurisdiction for specified
instances enumerated therein, to wit:
(1) To issue orders for the protection and
preservation of the rights of the parties which do
not involve any matter litigated by the appeal,
such as, the appointment of a receiver, and the
issuance of writs of preliminary attachment or
preliminary injunction.
(2) To approve compromises.
(3) To permit appeals of indigent litigants.
(4) To order execution pending appeal in
accordance with section 2 of Rule 39.
(5) To allow withdrawal of the appeal.
The residual jurisdiction of the trial court is
available at a stage in which the court is
normally deemed to have lost jurisdiction over
the case or the subject matter involved in the
appeal. This stage is reached upon the
perfection of the appeals by the parties or upon
the approval of the records on appeal, but prior
to the transmittal of the original records or the
records on appeal. Considering that no appeal
was perfected in this case and the records of the
case have not yet been transmitted to the Court
of Appeals, the case has not as yet attained the
residual jurisdiction stage so as to say that the
trial court already lost the jurisdiction it first
acquired and that it is left with only its residual
powers.
3. Rule 37 Section 1 states that within the
period for taking an appeal, the
aggrieved party may move the trial court
to set aside the judgment or final order
and grant a new trial for one or more of
the following causes materially affecting
the substantial rights of said party.
Rule 41 Sec. 3. states that the appeal
shall be taken within fifteen (15) days
from notice of the judgment or final
order appealed from. Where a record
on appeal is required, the appellant shall
file a notice of appeal and a record on
appeal within thirty (30) days from notice
of the judgment or final order. The
period of appeal shall be interrupted by
a timely motion for new trial or
reconsideration. No motion for
extension of time to file a motion for new
trial or reconsideration shall be allowed.
It is without question that Fernandez
received a copy of the RTC Decision on 28 June
1994. Fourteen (14) days after the receipt of the
decision or specifically on 12 July 1994, he filed
a motion for reconsideration. Applying Rule 37,
Section 1 of the Revised Rules of Court, he had
only one (1) day left to file a motion for new trial
since a motion for new trial should be filed within
the period to appeal, that is, within fifteen (15)
days from notice of the judgment. The motion for
new trial suspends the running of the period to
appeal but does not extend the time within which
an appeal must be perfected. Hence if denied, a
movant, like Fernandez in this case has only the
balance of the reglementary period within which
to appeal.
It bears repeating that Fernandez received
a copy of the RTC decision on 28 June
1994. Applying Rule 41, Section 3 of the
Revised Rules of Court, he had fifteen (15) days
from receipt of the RTC decision to file a motion
for new trial or reconsideration. He filed a
motion for reconsideration fourteen (14) days
after receipt of the decision. The motion was
denied and he had only the remaining one (1)
day to file a motion for new trial which day fell on
01 December 1994. Since 30 November 1994
was a holiday, Fernandez had up to 01
December 1994 to file the motion for new
trial. Extant from the records, instead of a
motion for new trial, he filed before the Court of
Appeals on 01 December 1994 the motion for
extension of time to file petition for
review. Thereafter, and pending the resolution
of his motion before the Court of Appeals,
Fernandez went back to the RTC and filed
on 09 December 1994 a motion for new trial.
Applying the foregoing, Fernandezs motion
for new trial was filed out of time. The fifteen
(15)-day period for filing a motion for new trial
cannot be extended. The rule
in Habaluyas applies that if the motion is filed
before the expiration of the period sought to be
extended because the fifteen (15) days period
for filing a motion for new trial or reconsideration
with said court is non-extendible. Thus, motions
for extension of time to file a motion for new trial
or reconsideration may be filed only in
connection with cases pending before the
Supreme Court, which may in its sound
discretion either grant or deny the extension
requested. No such motion may be filed before
any lower courts.
A motion for new trial must be filed during
the period for filing an appeal and that such
period cannot be extended, Fernandez, by filing
his motion for new trial beyond the period to
appeal, had unwittingly sealed his fate and
stripped himself of any further relief.
ISIDRA VDA. DE VICTORIA Substituted by
MARIO VICTORIA, petitioner,
vs.
HON. COURT OF APPEALS
A Complaint for "Ejectment and Damages with a
Writ of Preliminary Mandatory Injunction" 3
against Isidra Vda. de Victoria (the mother of
herein petitioner Mario Victoria), Eusebio Arida,
Juan Becina and Guillermo Becina was filed with
the Municipal Trial Court (MTC) of Calauan,
Laguna, docketed as Civil Case No. 261
In their Complaint, the Gibe spouses alleged
that they acquired a parcel of land (the property)
from the heirs of the late Judge Gregorio Lantin, Execution and Demolition7 praying that "a writ of
designated as Lot 1-B-153-A with an area of execution be issued to enforce and satisfy the
approximately 27,064 square meters (sq. m.). judgment, for the ejectment and demolition of
the house of the Defendants."
The property was originally part of Lot 1-B-153
with an area of approximately 34,829 sq. m., Eight days after promulgation and receipt of the
which was subdivided into seven parcels in 1989 MTC decision or on May 29, 1998, the
among Judge Lantin and four of his tenants as defendants in the Ejectment Case filed a Notice
follows: of Appeal8 without, however, filing a
supersedeas bond to stay the immediate
execution of the decision and depositing monthly
Lot Area (in
Tenant/Owner/Claimant rentals.
No. sq. m.)
By Order of June 1, 1998,9 the MTC granted the
1-B- Motion for Immediate Execution and Demolition
153- Gregorio Lantin 27,064 and accordingly issued a Writ of Execution.10
A
ISSUE:

1-B- Whether or not MTCC has jurisdiction to

153- Felix Victoria 883 try the case?
B
HELD:
1-B-
153- Guillermo Becina 3,900 Jurisdiction of a court is determined by the
allegations in the complaint. The complaint filed
C
by the private respondents was for Ejectment
and Damages With a Writ of Preliminary
1-B- Mandatory Injunction. Ejectment proceedings
153- Juan Becina 2,019 are within the exclusive original jurisdiction of
the Municipal Trial Court.
D
Moreover, petitioners principal substantive
1-B- argument that the Ejectment Case properly falls
153- Felix Victoria 624 within the jurisdiction of the DARAB and not of
E the MTC is without merit.

The MTC does not automatically lose its

1-B- exclusive original jurisdiction over ejectment
153- Eusebio Arida 224 cases by the mere allegation of a tenancy
F relationship. As thoroughly discussed in Rivera
v. Santiago ,41 the party alleging tenancy must
prove the existence of all the essential requisites
1-B- of tenancy in order to oust the MTC of its
153- Gregorio Lantin 115 jurisdiction over the case:
G
Jurisdiction is determined by the allegations in
the complaint. That is basic. Unquestionably,
Total Area 34,829
petitioner lodged an action for ejectment before
the MTC. Under BP 129, the allegations in the
complaint conferred initiatory jurisdiction on that
The defendants possession of the property was first level court.
by virtue of an emancipation patent. Upon ruling
in favor of the plaintiff, a Motion for Immediate xxx
However, when tenancy is averred as a defense
and is shown prima facie to be the real issue,
the MTC must dismiss the case for lack of
jurisdiction. Under RA 6657, it is the DAR that
has authority to hear and decide when tenancy
is legitimately involved.
In the instant case, respondents averred
tenancy as an affirmative and/or special defense
in their Answer with Counterclaim. Under the
RSP [Revised Rule on Summary Procedure],
the MTC was supposed to conduct a preliminary
conference to determine if such relationship was
indeed the real issue. We emphasize that the
MTC did not automatically lose its
jurisdiction simply because respondents
raised tenancy as a defense. It continued to
have the authority to hear the case precisely
to determine whether it had jurisdiction to
dispose of the ejectment suit on its merits.
xxx
An agrarian dispute refers to any controversy
relating to, inter alia, tenancy over lands devoted
to agriculture. To determine whether the CA was
correct in its reversal of the trial court, it is
necessary to keep in mind the essential
requisites of tenancy which are as follows:
(1) The parties are the landowner and
the tenant or agricultural lessee;
(2) The subject of the relationship is
agricultural land;
(3) There is mutual consent to the
tenancy between the parties;
(4) The purpose of the relationship is
agricultural production;
(5) There is personal cultivation by
the tenant or agricultural lessee; and
(6) There is a sharing of harvests
between the parties.
All these elements must concur. It is not
enough that they are alleged; to divest the
MTC of jurisdiction, they must all be shown
to be present.
Republic vs Sandiganbayan
Facts:
This special civil action for certiorari assails two
resolutions of the Sandiganbayan (anti-graft court
or court) issued during the preliminary legal
skirmishes in this 20-year case:(1) the January 31,
2000 Resolution which granted the motion for a bill
of particulars filed by executor Ferdinand R.
Marcos, Jr. (respondent) on behalf of his fathers
estate and (2) the March 27, 2001 Resolution
which denied the governments motion for
reconsideration.
The administration of then President Corazon C.
Aquino successively sued former President
Ferdinand E. Marcos and former First Lady
Imelda Romualdez-Marcos (Mrs. Marcos), and
their alleged cronies or dummies before the anti-
graft court to recover the alleged ill-gotten
wealth that they amassed during the former
presidents 20-year rule. Roman A. Cruz, Jr.
(Cruz), then president and general manager of
the Government Service Insurance System
(GSIS); president of the Philippine Airlines
(PAL); chairman and president of the Hotel
Enterprises of the Philippines, Inc., owner of
Hyatt Regency Manila; chairman and president
of Manila Hotel Corporation; and chairman of the
Commercial Bank of Manila (CBM), is the
alleged crony in this case.
On July 21, 1987, the Presidential Commission
on Good Government (PCGG), through the
Office of the Solicitor General, filed a Complaint
for reconveyance, reversion, accounting,
restitution and damages alleging that Cruz and
the Marcoses stole public assets and invested
them in several institutions here and
abroad. The PCGG also prayed for the payment
of moral damages of P50 billion and exemplary
damages of P1 billion.
On September 18, 1987, Cruz filed an Omnibus
Motion to Dismiss, strike out averments in the
complaint, and for a bill of particulars.
On April 18, 1988, the court ordered that alias
summonses be served on the Marcoses who
were then in exile in Hawaii. The court likewise
admitted the PCGGs Expanded Complaint
dated April 25, 1988, then denied Cruzs
omnibus motion on July 28, 1988 after finding
that the expanded complaint sufficiently states
causes of action and that the matters alleged
are specific enough to allow Cruz to prepare a
responsive pleading and for trial On September
15, 1988, Cruz filed his answer ad cautelam.
On November 10, 1988, the alias summonses on
the Marcoses were served at
2338 Makiki Heights, Honolulu, Hawaii. The Marc
oses, however, failed to file an answer and were
accordingly declared in default by the anti-graft
court on April 6, 1989.
On January 11, 1999, after pre-trial briefs had
been filed by Cruz, the PCGG, and Mrs. Marcos,
the court directed former President Marcos
children to appear before it or it will proceed with
pre-trial and subsequent proceedings.
On March 16, 1999, respondent filed a Motion
for Leave to File a Responsive Pleading as
executor of his late fathers estate. The PCGG
opposed the motion, citing as ground the
absence of a motion to set aside the default
order or any order lifting the default status of
former President Marcos.
Respondent asked for three extensions totaling
35 days to file an answer. The court granted the
motions and gave him until July 17, 1999 to file
an answer. But instead of filing an answer,
respondent filed on July 16, 1999, a Motion For
Bill of Particulars, praying for clearer statements
of the allegations which he called mere
conclusions of law, too vague and general to
enable defendants to intelligently answer.
Issue: Did the court commit grave abuse of
discretion amounting to lack or excess of
jurisdiction in granting respondents motion for a
bill of particulars as executor of former President
Marcos estates considering that the deceased
defendant was then a defaulting defendant when
the motion was filed?
Ruling: We rule in the negative, and dismiss the
instant petition for utter lack of merit.
Under the Rules of Court, a defending party may
be declared in default, upon motion and notice,
for failure to file an answer within the allowable
period. As a result, the defaulting party cannot
take part in the trial albeit he is entitled to notice
of subsequent proceedings.
The remedies against a default order are: (1) a
motion to set aside the order of default at any
time after discovery thereof and before judgment
on the ground that the defendants failure to file
an answer was due to fraud, accident, mistake
or excusable neglect and that the defendant has
a meritorious defense; (2) a motion for new trial
within 15 days from receipt of judgment by
default, if judgment had already been rendered
before the defendant discovered the default, but
before said judgment has become final and
executory; (3) an appeal within 15 days from
receipt of judgment by default; (4) a petition for
relief from judgment within 60 days from notice
of judgment and within 6 months from entry
thereof; and (5) a petition for certiorari in
exceptional circumstances.
In this case, former President Marcos was
declared in default for failure to file an
answer. He died in Hawaii as an exile while this
case was pending, since he and his family fled
to Hawaii in February 1986 during a people-
power revolt in Metro Manila. His
representatives failed to file a motion to lift the
order of default. Nevertheless, respondent, as
executor of his fathers estate, filed a motion for
leave to file a responsive pleading, three
motions for extensions to file an answer, and a
motion for bill of particulars all of which were
granted by the anti-graft court.
Given the existence of the default order then,
what is the legal effect of the granting of the
motions to file a responsive pleading and bill of
particulars? In our view, the effect is that the
default order against the former president is
deemed lifted.
Considering that a motion for extension of time
to plead is not a litigated motion but an ex
parte one, the granting of which is a matter
addressed to the sound discretion of the court;
that in some cases we have allowed defendants
to file their answers even after the time fixed for
their presentation; that we have set aside orders
of default where defendants failure to answer on
time was excusable; that the pendency of the
motion for a bill of particulars interrupts the
period to file a responsive pleading; and
considering that no real injury would result to the
interests of petitioner with the granting of the
motion for a bill of particulars, the three motions
for extensions of time to file an answer, and the
motion with leave to file a responsive pleading,
the anti-graft court has validly clothed
respondent with the authority to represent his
deceased father. The only objection to the
action of said court would be on a
technicality. But on such flimsy foundation, it
would be erroneous to sacrifice the substantial
rights of a litigant. Rules of procedure should be
liberally construed to promote their objective in
assisting the parties obtain a just, speedy and
inexpensive determination of their case
While it is true that there was no positive act on
the part of the court to lift the default order
because there was no motion nor order to that
effect, the anti-graft courts act of granting
respondent the opportunity to file a responsive
pleading meant the lifting of the default order on
terms the court deemed proper in the interest of
justice. It was the operative act lifting the default
order and thereby reinstating the position of the
original defendant whom respondent is
representing, founded on the courts
discretionary power to set aside orders of
default.
It is noteworthy that a motion to lift a default order
requires no hearing; it need be under oath only
and accompanied by an affidavit of merits
showing a meritorious defense. And it can be filed
at any time after notice thereof and before
judgment. Thus, the act of the court in
entertaining the motions to file a responsive
pleading during the pre-trial stage of the
proceedings effectively meant that respondent
has acquired a locus standi in this case. That he
filed a motion for a bill of particulars instead of an
answer does not pose an issue because he, as
party defendant representing the estate, is
allowed to do so under the Rules of Court to be
able to file an intelligent answer. It follows that
petitioners filing of a bill of particulars in this case
is merely a condition precedent to the filing of an
answer.
Indeed, failure to file a motion to lift a default
order is not procedurally fatal as a defaulted
party can even avail of other remedies
mentioned above.
SALITA V. HON. MAGTOLIS
G.R. NO. 106429, JUNE 13, 1994
FACTS:
The petition for annulment was filed before the
Regional Trial Court of Quezon City on 7
January 1992. Therein it is alleged that
"[s]ometime in 1987, petitioner (Erwin Espinosa)
came to realize that respondent (Joselita Salita)
was psychologically incapacitated to comply with
the essential marital obligations of their
marriage, which incapacity existed at the time of
the marriage although the same became
manifest only thereafter." 2 Dissatisfied with the
allegation in the petition, Joselita moved for a bill
of particulars which the trial court granted.
Subsequently, in his Bill of Particulars, Edwin
specified that she was unable to understand and
accept the demands made by his profession
that of a newly qualified Doctor of Medicine
upon petitioners time and efforts so that she
frequently complained of his lack of attention to
her even to her mother, whose intervention
caused petitioner to lose his job. Still Joselita
was not contented with the Bill of Particulars.
She argued that the "assertion (in the Bill of
Particulars) is a statement of legal conclusion
made by petitioners counsel and not an
averment of ultimate facts, as required by the
Rules of Court, from which such a conclusion
may properly be inferred . . . ." 4 But finding the
questioned Bill of Particulars adequate, the trial
court issued an order upholding its sufficiency
and directing Joselita to file her responsive
pleading.
ISSUE:
Whether the Bill of Particulars submitted by
herein respondent is of sufficient definiteness or
particularity as to enable herein petitioner to
properly prepare her responsive pleading or for
trial.
RULING:
The Bill of Particulars submitted is sufficient.
A complaint only needs to state the "ultimate
facts constituting the plaintiffs cause or causes
of action." 9 Ultimate facts has been defined as
"those facts which the expected evidence will
support." 10 As stated by private respondent,
"[t]he term does not refer to the details of
probative matter or particulars of evidence by
which these material elements are to be
established." It refers to "the facts which the
evidence on the trial will prove, and not the
evidence which will be required to prove the
existence of those facts." And a motion for bill of
particulars will not be granted if the complaint,
while not very definite, nonetheless already
states a sufficient cause of action. 11 A motion
for bill of particulars may not call for matters
which should form part of the proof of the
complaint upon trial. Such information may
be obtained by other means. 12
We sustain the view of respondent Court of
Appeals that the Bill of Particulars filed by
private respondent is sufficient to state a
cause of action, and to require more details
from private respondent would be to ask for
information on evidentiary matters. Indeed,
petitioner has already been adequately apprised
of private respondents cause of action against
her thus
. . . . (she) was psychologically
incapacitated to comply with the
essential marital obligations of
their marriage in that she was
unable to understand and
accept the demands made by
his profession that of a newly
qualified Doctor of Medicine
upon petitioners time and
efforts so that she frequently
complained of his lack of
attention to her even to her
mother, whose intervention
caused petitioner to lose his job.
On the basis of the aforequoted allegations, it is
evident that petitioner can already prepare her
responsive pleading or for trial. Private
respondent has already alleged that "she
(petitioner) was unable to understand and
accept the demands made by his profession . . .
upon his time and efforts . . . " Certainly, she can
respond to this. To demand for more details
would indeed be asking for information on
evidentiary facts facts necessary to prove
essential or ultimate facts. 13 For sure, the
additional facts called for by petitioner regarding
her particular acts or omissions would be
evidentiary, and to obtain evidentiary matters is
not the function of a motion for bill of
particulars. 14
We distinguish the instant case from Tantuico,
Jr. v. Republic 15 where we said
Furthermore, the particulars
prayed for such as names of
persons, names of corporations,
dates, amounts involved, a
specification of property for
identification purposes, the
particular transactions involving
withdrawals and disbursements,
and a statement of other
material facts as would support
the conclusions and inferences
in the complaint, are not
evidentiary in nature. On the
contrary, those particulars are
material facts that should be
clearly and definitely averred in
the complaint in order that the
defendant may, in fairness, be
informed of the claims made
against him to the end that he
 may be prepared to meet the
issues at the trial.
FACTS:
The aforementioned pronouncement cannot
apply to the instant case. That ruling involves
alleged "misappropriation and theft of public
funds, plunder of the nations wealth, extortion,
blackmail, bribery, embezzlement, and other
acts of corruption, betrayal of public trust and
brazen abuse of power." The respondents
therein pray for reconveyance, reversion,
accounting, restitution and damages. There, the
alleged illicit acts should be fully documented.
The instant case, on the other hand, concerns
marital relationship. It would be unreasonable, if
not unfeeling, to document each and every
circumstance of marital disagreement. True, the
complaining spouse will have to prove his case,
but that will not come until trial begins.
Consequently, we have no other recourse but to
order the immediate resumption of the
annulment proceeding which have already been
delayed for more than two years now, even
before it could reach its trial stage. Whether
petitioner is psychologically incapacitated should
be immediately determined. There is no point in
unreasonably delaying the resolution of the
petition and prolonging the agony of the wedded
couple who after coming out from a storm still
have the right to a renewed blissful life either
alone or in the company of each other.
RULE 13- FILING AND SERVICE OF
PLEADINGS, JUDGMENTS AND OTHER
PAPERS
SEC. 2. FILING AND SERVICE, DEFINED
G.R. No. 143791 January 14, 2005
PETER D. GARRUCHO, petitioner,
vs.
COURT OF APPEALS, HON. OSCAR B.
PIMENTEL (in his capacity as Presiding
Judge of the Regional Trial Court, Branch
148, Makati City), SHERIFF RENATO C.
FLORA (in his capacity as Branch Sheriff),
and RAMON BINAMIRA, respondents.
In a Letter dated July 18 and 26, 1990,
then Secretary of the Department of
Tourism and Chairman of the Board of
Directors of the Philippine Tourism
Authority (PTA) petitioner Peter D.
Garrucho requested then Commissioner
of Immigration and Deportation Andrea
Domingo to issue Hold Departure
Orders against Ramon Binamira and
Faustino Roberto.
This was in connection with the
investigation being conducted by the
Department of Justice involving
anomalous transactions in government
securities affecting the PTA
.Commissioner Domingo granted the
request and issued Hold Departure
Order against Binamira and Roberto on
the said date. Roberto requested the
lifting of the order, and Secretary
Garrucho opposed the same in a Letter
dated August 22, 1990.1awphi1.nt
Roberto then filed a complaint for
prohibition and damages against
petitioner Garrucho and
Commissioner Domingo in the
Regional Trial Court (RTC) of Makati
City. Binamira, for his part, filed a
complaint-in-intervention in the case.
Petitioner Garrucho was represented by
private practitioners Remollo &
Associates, whose offices were located
at Suite No. 23, Legaspi Suites, 178
Salcedo Street, Legaspi Village, Makati
City.
On April 16, 1997, the trial court
rendered judgment in favor of
respondent Binamira. Further, the
Hold Departure Order been found to be
void ab initio, unconstitutional and
illegal, the preliminary injunction is
hereby declared permanent.

The petitioner and Commissioner
Domingo appealed the decision to the
Court of Appeals (CA).
On March 9, 1999, the CA sent a notice
by registered mail to the petitioners
counsel directing the latter to file his
brief as appellant. However, the notice
was returned to the court. The envelope
containing the said notice was stamped,
thus: "Return To Sender, Moved Out."
The CA resent the notice dated March
5, 1999 to the petitioner at his office at
the Department of Tourism building,
Agripino Circle, Manila. The notice was
returned to the CA on May 5, 1999,
again, having been "unclaimed."
The CA issued a minute resolution on
June 23, 1999, declaring that the
service of notice on the petitioner was
complete as of May 5, 1999. A copy of
the said resolution was sent by
registered mail to the petitioner in the
Department of Tourism.
On November 26, 1999, the appellate
court issued a Resolution dismissing the
appeal of the petitioner for his failure to
file his brief. A copy of the resolution
was sent by registered mail to the
petitioners counsel, but the said
resolution was returned to the court with
a notation stamped on the envelope
"Return To Sender, Moved Out." The
CA then had a separate copy of the
notice served by registered mail on the
petitioner at his office address, but the
same was returned to the CA with the
notation "Unclaimed."
The appellate court issued an entry of
judgment A copy of the said entry of
judgment was sent to the petitioner by
registered mail at the Department of
Tourism. Thus, the appeal of
Commissioner Domingo was considered
submitted for decision after filing her
brief and the filing by the plaintiff-
appellee of his brief.
Binamiras motion for a writ of execution
against the petitioner was granted by
the trial court and subsequently issued a
writ of execution on June 28, 2000. The
sheriff served a copy of the said writ on
the petitioner on July 12 and 17, 2000,
at his office at the Benpress Building,
Pasig City.
The petitioner filed a petition
for certiorari under Rule 65 of the Rules
of Court against the CA, the RTC,
Sheriff Flora and Binamira, for the
nullification of the CA resolutions dated
June 23, 1999 and November 26, 1999,
the June 22, 2000 Order of the RTC, as
well as the June 28, 2000 writ of
execution issued by the latter court.
ISSUE:
WON the CA and RTC erred in issuing
the assailed resolutions and order
because petitioner never received
copies of the assailed CA resolutions
which were sent to him at his former
office at the Department of Tourism.
SC RULING:
The petition has no merit.
The contention of the petitioner that he was
deprived of his right to due process when the CA
dismissed his appeal because of his failure to
file his brief as appellant therein has no factual
and legal basis.
The records show that the counsel of the
petitioner in the trial court was the law firm of
Remollo & Associates with offices at Suite No.
23, Legaspi Suites, 178 Salcedo Street, Legaspi
Village, Makati City. Under Section 2, Rule 44 of
the 1997 Rules of Civil Procedure, the counsel
of the parties in the court of origin shall be
considered as their counsel in the CA.
Section 2, Rule 13 of the Rules of Civil
Procedure provides that if any party has
appeared by counsel, service upon him shall
be made upon his counsel unless served
upon the party himself is ordered by the trial
court. Notice or service made upon a party who
is represented by counsel is a nullity. Notice to
the client and not to his counsel of record is
not notice in law. The rule admits of
exceptions, as when the court or tribunal orders
service upon a party or when the tribunal
defendant is waived.
In the absence of a proper and adequate
notice to the court of a change of address,
the service of the order or resolution of a
court upon the parties must be made at the
last address of their counsel on record. It is
the duty of the party and his counsel to device a
system for the receipt of mail intended for them,
just as it is the duty of the counsel to inform the
court officially of a change in his address. It is
also the responsibility of a party to inform the
court of the change of his address so that in the
event the court orders that an order or resolution
be served on the said party to enable him to
receive the said resolution or order.
In the present case, the law firm of Remollo &
Associates, the petitioners counsel of record,
moved out from their office at the Legaspi Suites
to Dumaguete City without informing the court of
such fact. Based on its records, the CA believed
that the law office of the petitioners counsel was
still at the Legaspi Suites and sent copies of its
resolutions to the counsel of the petitioner at the
said address.
Neither did the petitioner inform the court of his
home or office address after his resignation as
Secretary of the Department of Tourism where
copies of the said order or resolution could be
sent. Notwithstanding his stature in the business
community, the CA cannot take judicial notice of
the petitioners home address or his office
address after his departure as Secretary of the
Department of Tourism or as Executive
Secretary of the President.
Indeed, the petitioner has nobody but
himself to blame. It was his responsibility to
check the status of his appeal in the CA from
time to time, from his counsel or from the
CA. He failed to do so. As we held in Bernardo
v. Court of Appeals :
Litigants, represented by counsel, should not
expect that all they need to do is sit back, relax
and await the outcome of their case. They
should give the necessary assistance to their
counsel for what is at stake is their interest in the
case.1awphi1.nt
In his concurring opinion in Republic vs.
Sandiganbayan, Mr. Justice Teodoro R. Padilla
emphasized the value and significance of the
partys presence and diligence in the
advancement of his cause, thus:
xxx An almost lifetime of experience in litigation
is the best witness to the indispensability of
partys presence (aside from his lawyer, in case
he has the assistance of counsel) in order to
litigate with any reasonable opportunity of
success. xxx especially during the cross-
examination of adverse partys witnesses
where the truth must be determined every
counsel worth his salt must have the assistance
and presence of his client on the spot, for the
client invariably knows the facts far better than
his counsel. In short, even in civil cases, the
presence of party (as distinguished from his
lawyer alone) is essential to due process.
True enough, the party-litigant should not rely
totally on his counsel to litigate his case even if
the latter expressly assures that the formers
presence in court will no longer be needed. No
prudent party will leave the fate of his case
entirely to his lawyer. Absence in one or two
hearings may be negligible but want of inquiry or
update on the status of his case for several
months (four, in this case) is inexcusable. It is
the duty of a party-litigant to be in contact with
his counsel from time to time in order to be
informed of the progress of his case. Petitioner
simply claims that he was busy with his gravel
and sand and trading businesses which involved
frequent traveling from Manila to outlying
provinces. But this was not a justifiable excuse
for him to fail to ask about the developments in
his case or to ask somebody to make the query
for him. Petitioner failed to act with prudence
and diligence; hence, his plea that he was not
accorded the right to due process cannot elicit
this Courts approval or even sympathy.
The petition was DENIED for lack of merit.
PHILIPPINE RADIANT PRODUCTS, INC., vs.
METROPOLITAN BANK & TRUST COMPANY,
INC.
G.R. NO. 163569 DECEMBER 09, 2005
FACTS:
On February 1, 2001, the Philippine Radiant
Products, Inc. (PRPI) filed a complaint3 against
the Aurora Textile Finishing Company (ATFC),
the Philippine Savings Bank (PSB), and the
Metropolitan Bank & Trust Company, Inc.
(MBTC) in the RTC of Tagum City, for specific
performance and damages. PRPI alleged, that it
had been ordering from ATFC yards of medical
plaster cloth backing since 1990 and up to the
present time. To pay for its purchases from
ATFC, PRPI opened a savings account and a
current account with PSB and opened a Letter of
Credit at MBTC. PSB would charge all payments
made by PRPI to ATFC against its account with
PSB and then remit the same to MBTC. The
latter would then remit the payment to ATFC.
On August 12, 2000, an order for 35,000 yards
of medical plaster cloth backing was placed by
PRPI and accepted by ATFC. The shipment
arrived at the port of Manila. However, the
agreed port of destination was the Davao City
port. When the shipment of 35,000 yards of
medical plaster cloth backing finally arrived at
Davao City, PRPI discovered that the said
35,000 yards cloth backing were not vinyl
coated. PRPI immediately informed PSB and
MBTC of the discrepancy. PRPI also informed
ATFC that the 35,000 yards medical plaster
cloth backing they delivered was not vinyl
coated. ATFC promised PRPI that it would send
to the Philippines a technician to perform vinyl
coating on the 35,000 yards of the medical
plaster cloth backing. ATFC demanded payment
of the shipment and was poised to collect from
PSB and MBTC. PRPI thus prayed in its
complaint for injunctive relief to enjoin PSB and
MBTC from making payment to ATFC for the
shipment.4 PRPI likewise prayed for payment of
attorneys fees, but despite its repeated requests
to ATFC to make good its commitments, the
same remained unanswered. On February 21,
2001, the RTC issued an Order7 enjoining the
PSB and MBTC to suspend payment for the
goods to ATFC until final orders of the court.
On March 13, 2001, MBTC filed its Answer8 in
which it interposed in the special and affirmative
defense that it had already paid the amount on
January 31, 2001 under the Letter of Credit with
ATFC named as beneficiary. MBTC interposed
compulsory counterclaim.
n its amended answer to MBTCs complaint,
PRPI interposed the special and affirmative
defense of litis pendentia and forum shopping.
on April 8, 2003, the RTC of Davao City issued
an Order13dismissing the complaint in the said
case on the ground of litis pendentia. MBTC
appealed the said Order to the CA. Meanwhile,
on June 14, 2002, the RTC of Tagum City
rendered judgment in Civil Case No. 3400 in
favor of PRPI and against MBTC and ATFC
ordering Metropolitan Bank and Trust Company
and Aurora Textile Finishing Company to pay
plaintiff, jointly and severally. On August 23,
2002, the Ex-Officio Sheriff issued a Writ of
Execution20 in compliance with the said order
granting partial execution pending appeal. On
August 27, 2002, the Sheriff arrived at the
Davao City office of MBTC and served copies of
the August 22, 2002 Orders and the writ of
execution on William R. Vidanes, the manager
of MBTC, who endorsed the said orders to
Patricia Uy, the General Manager of the Davao
City branch.21
On August 30, 2002, the counsel of MBTC
received copies of the August 22, 2002 Orders
of the court. He filed a Notice of Appeal of the
RTC of Tagum Citys decision and its August 22,
2002 Order partially granting MBTCs motion for
reconsideration of the decision.22
PRPI opposed the appeal of MBTC contending
that it was filed beyond the period therefor. PRPI
alleged that MBTC received a copy of the
August 22, 2002 Order denying its motion for
reconsideration on August 27, 2002, and not on
August 30, 2002 as alleged by MBTC. PRPI
relied on the Initial Report23 of the Ex-
Officio Sheriff dated September 2, 2002 on his
service of the writ of execution and said order
wherein he stated, inter alia, that he talked by
telephone to MBTCs counsel, when he served
on August 27, 2002 the Orders dated August 22,
2002 of the RTC of Tagum City on Vidanes and
Uy and said counsel ordered him to leave the
copies of the orders with Uy.
MBTC declared, in its Reply and Surrejoinder,
that the period for appeal should be reckoned
from August 30, 2002 when its counsel received,
by registered mail, the August 22, 2002 Order of
the RTC of Tagum City denying its motion for
reconsideration and not from August 27, 2002
when Vidanes and Uy were served with copies
of said orders. MBTC also alleged that its
counsel objected to the service on Vidanes and
Uy of the August 22, 2002 Order denying its
motion for reconsideration considering that
separate copies of said order had been served
on its counsel of record.
At the hearing on PRPIs motion for clarification,
the Ex-Officio Sheriff testified that he was told by
Atty. Emmanuel Galicia, Jr., MBTCs counsel,
when they talked on the telephone on August
22, 2002, to just leave the copies of the August
22, 2002 Order with Uy. The RTC of Tagum City
gave credence to the testimony of the sheriff.
When MBTC received the September 20, 2002
Order of the RTC of Tagum City, it filed an
urgent motion for reconsideration ex abundanti
ad cautelam26 with a tender of the testimony of
Atty. Galicia refuting the testimony of the sheriff.
The lawyer testified and belied the testimony of
the sheriff. Appended to the motion was the
affidavit of Atty. Galicia in support thereof. PRPI,
for its part, filed a motion for the full execution of
the June 14, 2002 Decision of the RTC of
Tagum City. On October 8, 2002, MBTC filed a
petition for certiorari against PRPI and the
Sheriff with the CA for the nullification of the
June 14, 2002 Decision and the Orders dated
August 22, 2002, September 20, 2002 and
October 4, 2002 of the RTC of Tagum City, with
a prayer for injunctive relief. However, the CA
failed to act on MBTCs plea for injunctive relief.
Worse, on October 17, 2002, the CA issued a
Resolution dismissing the petition.
RULING:
The respondent cannot, likewise, be faulted for
filing its motion ex abundantia cautelam for the
quashal of the writ of execution issued by the
RTC and its Manifestation and Motion ex
abundanti ad cautelam in the RTC. Despite the
filing of the petitions in CA-G.R. SP Nos. 73241
and 73432, the Sheriff went through the process
of implementing the writ of execution issued by
the RTC, by issuing a notice of levy and had the
same annotated at the dorsal portion of the
property of the respondent. and setting the sale
thereof at public auction. The Sheriff ignored the
pendency of CA-G.R. SP Nos. 73241 and 73432
on account of the failure of the CA to act on the
petition for writ of temporary restraining order.
The respondent had two remedies at that time to
protect its rights and interests: (1) file the motion
in the RTC in Civil Case No. 3400 ex abundanti
ad cautelam for the said court to suspend, in the
meantime, the enforcement of its writ of
execution or to quash the same, and for the
RTC to suspend all proceedings until after the
CA shall have resolved its plea for a temporary
restraining order or writ of preliminary injunction.
and/or (2) file a motion in the CA in CA-G.R. SP
No. 73432 for it to resolve its plea for injunctive
relief. The respondent sought relief in the CA
and in the RTC via a motion ex abundanti ad
cautelam. On November 25, 2002, the CA grant
the plea of the respondent for a writ of
preliminary injunction upon a bond
of P500,000.00, precisely because of the
precipitate enforcement by the Sheriff of the writ
of execution issued by the RTC. In nullifying the
September 20 and October 4, 2002 Orders of
the RTC of Tagum City, the CA declared that
service of a copy of the assailed RTC Order on
Uy on August 27, 2002 did not amount to
service thereof on respondent MBTC. Service of
such order on the respondent took place on
August 30, 2002 when Atty. Galicia received his
copy of the order by registered mail. The
petitioner avers that, as against the testimony of
the respondent, that of the Sheriff, who is
presumed to have acted regularly, should
prevail. The contention of the petitioner is
incorrect. Service of the order on the manager of
respondent MBTC and not on its counsel was
not notice to the said respondent. The only
exception is when the service upon the party
itself has been ordered by the court. The service
of the sheriff of the August 22, 2002 Order
through Vidanes and/or Uy on August 27, 2002
was not service on the respondent. Neither
could the respondent be deemed to have been
notified thereof as of August 27, 2002 for
purposes of appeal. It was not part of the duties
of the Sheriff to serve copies of the assailed
Order of the RTC on the counsel of the
respondent unless directed by the said court.
Such duty devolved on its process server. The
Sheriff had a copy of the assailed order because
it was forwarded to him by the Branch Clerk of
the RTC for the purpose of the implementation
of the writ of execution. Knowledge by Atty.
Galicia of the existence of the assailed Order on
August 27, 2002 during his telephone
conversation with the Sheriff does not amount to
service thereof on the respondent as
contemplated in Section 13, Rule 13 of the 1997
Rules of Civil Procedure. Service on the
respondent of the assailed order on Atty. Galicia
took place only on August 30, 2002 when he, in
fact, received the said order through registered
mail.
G.R. NO. 142358
January 31, 2006
GRAND PLACEMENT and GENERAL
SERVICES CORPORATION, vs. COURT OF
APPEALS, NATIONAL LABOR RELATIONS
COMMISSION, and MARY ANN PARAGAS,
FACTS:
On February 26, 1996, Mary Ann
Paragas (respondent) filed a complaint for
breach of contract, non-payment of monetary
benefits and damages against Philips
Electronics of Taiwan Ltd. (Philips) and its
accredited agent, J.S. Contractor, Inc., (JSCI)
before the NLRC, National Capital Region,
Quezon City. She alleged that: on December 14,
1994, she was deployed by JSCI to work as a
factory operator for Philips for a period of one
year with a monthly salary of NT$13,350.00,
exclusive of allowances; she worked at the
Philips factory in Chupei City until February 13,
1995; from February 14, 1995 to December 13,
1995, she was assigned to the Philips factory in
Chungli City; during the 10 months she worked
in Chungli City, she did not receive an additional
daily night shift allowance of NT$215.00 and full
attendance bonus of NT$900.00 per month,
benefits which she enjoyed while in Chupei City;
she paid an excessive placement fee
of P52,000.00; she returned to the Philippines
on December 23, 1995. Respondent prayed
that she be paid P207,300.00 for night shift
differential, excess placement fee, annual
bonus, and full attendance bonus;
NT$78,600.00 for salary differential; moral and
exemplary damages. During the pendency of the
case, the accreditation of JSCI was transferred
to Grand Placement and General Services
Corporation (petitioner). Consequently,
petitioner was impleaded as additional party
respondent in the NLRC case.
On February 20, 1997, Labor Arbiter
Caizares, Jr. rendered a decision in favor of
respondent Mary Ann Paragas. On November
25, 1997, the NLRC modified the decision of the
Labor Arbiter by dismissing the case against
JSCI and holding petitioner solely liable for
respondents claims.
On May 4, 1998, petitioner filed a
petition for certiorari before us, docketed as G.R.
No. 133361. On June 22, 1998, the Court
granted the temporary restraining order prayed
for in the petition and required the NLRC and
respondent to comment thereon.
On January 25 1999, after the parties
submitted their respective responsive
pleadings, the Court referred the petition to the
CA. On September 14, 1999, the CA issued the
herein assailed Decision affirming the decision
of the NLRC and lifting the TRO issued by this
Court. Hence this petition. However, in her
Comment, respondent alleges that the instant
petition merits outright dismissal for being filed
out of time since petitioner admitted that its
counsel on record, Atty. Ricardo C. Orias, Jr.,
received copy of the CA Resolution
dated January 7, 2000on January 25, 2000 and
the petition was filed only on May 5, 2000 or 101
days late.
ISSUE: WHETHER OR NOT THIS INSTANT
PETITION BE OUTRIGHTLY DISMISSED?
RULING:
NO. The Court finds for the petitioner.
To begin with, the Court is fully aware
that procedural rules are not to be belittled or
simply disregarded for these prescribed
procedures insure an orderly and speedy
administration of justice. However, it is
equally true that litigation is not merely a game
of technicalities. The law and jurisprudence
grant to courts the prerogative to relax
compliance with procedural rules of even the
most mandatory character, mindful of the duty to
reconcile both the need to put an end to litigation
speedily and the parties right to an opportunity
to be heard.
The Court has often stressed that rules
of procedure are merely tools designed to
facilitate the attainment of justice. They were
conceived and promulgated to effectively aid
the court in the dispensation of
justice. Courts are not slaves to or robots of
technical rules, shorn of judicial
discretion. In rendering justice, courts have
always been, as they ought to be,
conscientiously guided by the norm that on the
balance, technicalities take a backseat against
substantive rights, and not the other way
around. Thus, if the application of the Rules
would tend to frustrate rather than promote
justice, it is always within our power to suspend
the rules or except a particular case from its
operation.
In numerous cases, the Court has
allowed liberal construction of the Rules of Court
with respect to the rules on the manner and
periods for perfecting appeals, when to do so
would serve the demands of substantial justice
and in the exercise of equity jurisdiction of the
Supreme Court. Indeed, laws and rules should
be interpreted and applied not in a vacuum or in
isolated abstraction but in light of surrounding
circumstances and attendant facts in order to
afford justice to all. Thus, where a decision may
be made to rest on informed judgment rather
than rigid rules, the equities of the case must be
accorded their due weight because labor
determinations should not only be secundum
rationem but also secundum caritatem.
In this particular case, the suspension of
the Rules is warranted since the procedural
infirmity was not entirely attributable to the fault
or negligence of petitioner. Petitioner and its
counsel, Atty. Orias, Jr., agreed to terminate the
services of the latter on January 25, 2000. Atty.
Orias, Jr. received the CA Resolution
on January 28, 2000.The Withdrawal of
Appearance which Atty. Orias, Jr. gave to
petitioner was sent by the latter thru registered
mail only on March 24, 2000 and received by the
CA on March 27, 2000.
Considering that only three days have
elapsed since the termination of his services,
Atty. Orias, Jr. should have promptly relayed to
petitioner that he received the Resolution
dated January 7, 2000 denying petitioners
motion for reconsideration. Had he done so, he
would have known that his Withdrawal of
Appearance has not been sent yet by
petitioner. It is the duty of a lawyer to pay heed
to the urgency and importance of registered
letter sent by the court. Before the date of
receipt on March 27, 2000 by the CA of the
Withdrawal of Appearance, Atty. Orias, Jr.
remained as petitioners counsel of record.
Ordinarily, until his dismissal or
withdrawal is made of record in court, any
judicial notice sent to a counsel of record is
binding upon his client even though as
between them the professional relationship
may have been terminated. However, under
the peculiar circumstances of this case, Atty.
Orias, Jr. was negligent in not adequately
protecting petitioners interest, which necessarily
calls for a liberal construction of the
Rules. Verily, the negligence of Atty. Orias, Jr.
cannot be deemed as negligence of petitioner
itself in the present case. A notice to a lawyer
who appears to have been unconscionably
irresponsible cannot be considered as notice
to his client. Thus, petitioner is deemed to
have filed its petition for review
on certiorari within the reglementary period
as alleged in its Reply.
G.R. No. 181930 January 10, 2011
MILAGROS SALTING, Petitioner,
vs.
JOHN VELEZ and CLARISSA R.
VELEZ, Respondents.
FACTS:
(The only facts I see that is in relation to Rule
13 sec 2 is that the Petitioner alleged that
she was not properly informed of the MeTC
decision sent to her deceased counsel.)
On October 7, 2003, respondents John Velez
and Clarissa Velez filed a complaint for
ejectment against petitioner Milagros Salting and
obtained a favorable decision when the
Metropolitan Trial Court (MeTC), Branch 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 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).
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. 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.
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.
ISSUE:
Whether or not the service of pleadings
and judgement of the court to the
counsel is tantamount to service to party
litigant.
RULING:
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. 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. Litigants,
represented by counsel, cannot simply sit back,
relax, and await the outcome of their case. 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. 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. 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.
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 are AFFIRMED.
SO ORDERED.
G.R. No. 184542 April 23, 2010
ALMA B. RUSSEL, Petitioner,
vs.
TEOFISTA EBASAN and AGAPITO
AUSTRIA, Respondents.
Principles:
a. Section 3, Rule 13 of the Rules of
Court18 provides that if a pleading is filed
by registered mail, then the date of
mailing shall be considered as the date
of filing. It does not matter when the
court actually receives the mailed
pleading. Thus, in this case, as the
pleading was filed by registered mail on
July 27, 2007, within the reglementary
period, it is inconsequential that the CA
actually received the motion in October
of that year.
FACTS:
1. Petitioner filed a complaint for forcible
entry against respondent with the MTCC
of Iligan City. The MTCC rendered a
judgment in favor of petitioner.
2. Prejudiced by the ruling, respondent
appealed to the RTC which dismissed
the complaint.
3. Petitioner received her copy of the RTC
decision on April 13, 2007.
4. Petitioner filed appeal with the CA which
affirmed the RTC decicion on June
18,2007 as follows : That the petition
was filed out of time; that there is no
written explanation as to why the
petition was filed by mail instead of the
preferred mode of personal filing..
5. Petitioner received her copy of the June
18, 2007 Resolution of CA on July 18,
2007.
6. On July 27, 2007, petitioner filed by
registered mail her motion for
reconsideration and admission of her
amended petition. She pointed out in
her motion that the petition was filed
within the extended reglementary
period. She also explained that her
office clerk inadvertently failed to attach
the page containing the explanation why
filing by registered mail was resorted to.
7. The appellate court in the assailed
August 26, 2008 Resolution,denied
petitioners motion. It ruled that the
motion for reconsideration was filed only
on October 4, 2007, or 63 days after the
expiry of the reglementary period for the
filing thereof.
ISSUE:
Whether or not the motion for
reconsideration was filed out of time as required
by the rules.
HELD:
No. The petition is filed within the 15 day period.
Petitioners motion for reconsideration was
likewise filed on time. She received a copy of the
June 18, 2007 CA Resolution on July 18, 2007.
Under Section 1 of Rule 52, she had 15 days
from notice, or until August 2, 2007, to file a
motion for reconsideration.14 Petitioner filed by
registered mail her motion for reconsideration on
July 27, 2007. The fact of mailing on the said
date is proven by the registry return
receipt,15 the affidavit of service,16 and the
certification of the Office of the Postmaster of
Iligan City.17 Section 3, Rule 13 of the Rules of
Court18 provides that if a pleading is filed by
registered mail, then the date of mailing shall be
considered as the date of filing. It does not
matter when the court actually receives the
mailed pleading. Thus, in this case, as the
pleading was filed by registered mail on July 27,
2007, within the reglementary period, it is
inconsequential that the CA actually received
the motion in October of that year.
As to the CAs dismissal of the petition for
review on the ground that petitioner failed to
attach a written explanation for non-personal
filing, the Court finds the same improper. Iligan
City, where petitioner resides and where her
counsel holds office, and Cagayan de Oro City,
where the concerned division of the CA is
stationed, are separated by a considerable
distance. The CA, in the exercise of its
discretion, should have realized that it was
indeed impracticable for petitioner to personally
file the petition for review in Cagayan De Oro
City. Given the obvious time, effort and expense
that would have been spent in the personal filing
of the pleadings in this case, the written
explanation why service had not been done
personally, as required by Section 11 of Rule 13,
may be considered as superfluous
Heirs of Miranda v. Miranda, G.R. No. 179638,
July 8, 2013
Topic: Rule 13, Section 3.
Principle:
Under Section 3, Rule 13 of the Rules of Court,
pleadings may be filed in court either personally
or by registered mail.
A Notice of Appeal filed via a private courier is a
mode of filing not provided in the Rules. Though
not prohibited by the Rules, we have to
remember that it is a established jurisprudence
that the date of delivery of pleadings to a
private letter-forwarding agency is not to be
considered as the date of filing thereof in court;
instead, the date of actual receipt by the court x
x x is deemed the date of filing of that pleading.
FACTS:
In 1994, petitioners, heirs of Numeriano Miranda
Sr., filed before the Regional Trial Court (RTC)
of Muntinlupa City, a Complaint for Annulment of
Titles and Specific Performance against
respondent Pablo Miranda, et.al.
RTC sustain the validity of TCT Nos. 186011,
186012, and 186013 and order Pablo Miranda
to indemnify all other heirs of NUMERIANO
MIRANDA the amount equivalent to 12/13 fair
market value of the co-owned residential house.
They were also declared as lawful legal heirs of
the deceased TRANQUILINO MIRANDA and
ordering them to partition among themselves the
subject lot. The decision also ordered all
concerned heirs of NUMERIANO MIRANDA and
all claiming rights under them to immediately
vacate the abovementioned residential house
and to jointly and severally pay to the spouses
Pablo and Aida Miranda a monthly rental of
P2,000.00 from the date of notice of the
promulgation of this judgment up to the time that
they have actually vacated the property. Lastly,
the lower court suggested how shall the property
be allotted.
Petitioners did not file any appeal hence the
Decision became final and executory.
On July 8, 2005, respondent filed an Ex-parte
Motion praying that the RTC issue a Break-
Open and Demolition Order in order to compel
the petitioners to vacate his property which was
initially denied by RTC but later on granted when
respondent filed with the RTC a Petition for
Revival of Judgment.
On July 13, 2006, petitioners filed a Notice of
Appeal via LBC, which was opposed by
respondent on the ground that the Decision
dated August 30, 1999 has long become final
and executory. Petitioners, in turn, moved for the
transmittal of the original records of the case to
the CA, insisting that respondents opposition is
without merit. Records show that the Notice of
Appeal was mailed by petitioner on the 15th day
and was received by the court on the 16th day
or one day beyond the reglementary period.
RTC denied the Notice of Appeal in its Order
dated October 10, 2006 due to appeal barred by
prescription. Petitioner filed a Petition for
Mandamus with the CA praying that their Notice
of Appeal be given due course. It was denied on
the ground that the Notice of Appeal was filed
out of time. Petition for Mandamus was also
denied. Hence, this case raised at SC.
ISSUE:
Whether the appeal is perfected on time
(thereby CA erred in its decision of denying the
notice of appeal and the mandamus)?
RULINGS:
No. The notice of appeal was belatedly filed.
It is basic that a Notice of Appeal should be filed
within fifteen (15) days from notice of the
judgment or final order appealed from.
Under Section 3, Rule 13 of the Rules of
Court, pleadings may be filed in court either
personally or by registered mail. In the first
case, the date of filing is the date of receipt.
In the second case, the date of mailing is the
date of receipt. In this case, however, the
counsel for petitioners filed the Notice of
Appeal via a private courier, a mode of filing
not provided in the Rules. Though not
prohibited by the Rules, we cannot consider
the filing of petitioners Notice of Appeal via
LBC timely filed. It is established
jurisprudence that the date of delivery of
pleadings to a private letter-forwarding
agency is not to be considered as the date of
filing thereof in court; instead, the date of
actual receipt by the court x x x is deemed
the date of filing of that pleading. Records
show that the Notice of Appeal was mailed on
the 15th day and was received by the court on
the 16th day or one day beyond the
reglementary period. Thus, the CA correctly
ruled that the Notice of Appeal was filed out of
time.
WHEREFORE, the Petition is hereby DENIED.
The Decision dated June 14, 2007 and the
Resolution dated September 11, 2007 of the
Court of Appeals in CA-G.R. SP No. 97350 are
hereby AFFIRMED.
PNB VS. CIR
 On April 15, 1999, petitioner PNB filed
with the Bureau of Internal Revenue (BIR) its
Tentative Return for 1998 with the documents
enumerated in the List of Attachments to
Annual Income Tax Return Calendar Year
Ended December 31, 1998 enclosed.
September 30, 1999, PNB filed its Amended
Income Tax Return for 1998, with
corresponding attachments to an amended
annual income tax return appended, including
copies of the Certificates and Schedule of
Creditable Withholding Taxes for 1998.
likewise filed its Corporate Quarterly Returns for
the calendar year 1998.1[4]
On February 8, 2001, PNB filed with
respondent Commissioner of Internal Revenue
(CIR) an administrative claim for refund in the
amount of 6,028,594.00, which were payments
made in excess of its income tax liability for
1998.2[5]
As BIR did not act upon PNBs claim for
refund, PNB, on March 30, 2001, filed with the
Second Division of the Court of Tax Appeals
(CTA Division) a Petition for Review,3[6] and
prayed that it be refunded or issued a tax credit
certificate in the amount of 6,028,594.00,
representing creditable taxes withheld from
PNBs income from the sale of real property,
rental income, commissions, and management
fees for the taxable year 1998.
On In his Answer,4[7] the CIR alleged that
PNBs claim for refund/tax credit is subject first
the to an investigation and that it failed to establish
its right to a refund.
On May 19, 2003, the BIR issued in
PNBs favor Tax Credit Certificate No. SN
PNB
023837 for 4,154,353.42, leaving a balance of
1,874,240.58 out of PNBs total claim of
6,028,594.00. PNB then informed the CTA
Division of such tax credit certificate, and
manifested that its acceptance was without
prejudice to recovering the balance of its total
claim.5[9]
Consequently, the CIR filed a
Motion,6[10] asking that he be allowed to
present evidence on PNBs excluded claim. The
CIR argued that the amount of 1,874,240.58
was disallowed because it was not remitted to
the BIR, as verified by its Regional Accounting
Division.7[11]
On August 11, 2005, the CTA Division
rendered its Decision, ordering Respondent to
REFUND or ISSUE a Tax Credit Certificate in
favor of herein petitioner in the amount of
1,428,661.66, representing the latters
unutilized creditable withholding tax for the year
1998.
On September 14, 2005, PNB filed a
Motion for Partial Reconsideration,8[15]
asserting its entitlement to be refunded the
amount of 445,578.92, by explaining each
transaction involved and pinpointed by the CTA
Division. This however was still denied by the
CTA Division in its Resolution9[16] dated
November 15, 2005, for lack of merit.
Aggrieved, PNB, filed a partial appeal by
way of Petition for Review10[17] under Section
18 of Republic Act No. 928211[18] before the
CTA En Banc, to review and modify the CTA
Divisions August 11, 2005 Decision. This
petition was received by the CTA En Banc on
December 27, 2005, four days beyond the
additional 15 days granted to PNB to file its
petition. Thus, on January 27, 2006, the CTA En
Banc issued a Resolution12[19] denying due
course and consequently dismissing PNBs
petition for the following reasons:
1) The Petition For
Review was filed four (4) days late on
December 27, 2005, the reglementary
deadline for the timely filing of such
petition being December 23, 2005.
2) The petition is not
accompanied by the duplicate
original or certified true copies
of the assailed Decision dated
August 11, 2005 and Resolution
dated November 15, 2005, in
violation of Section 2, Rule 6 of
the Revised Rules of the Court
of Tax Appeals, in relation to
Section 6, Rule 43 of the Rules
of Court.
3) The Petition does
not contain an Affidavit of Service, in
violation of Section 13, Rule 13 of the
Rules of Court.
PNB asserted that its petition was filed
on December 23, 2005, which was the last day
of the additional 15-day period granted by the
CTA En Banc, via LBC Express, as shown by Thus, the manner in which petitions are filed
the copy of LBC Official Receipt No. before the CTA is also covered by the relevant
1299035013[21] dated December 23, 2005. provision of the Rules of Court, to wit:

On April 19, 2006, the CTA En Banc

denied PNBs motion for lack of merit. The CTA
Rule 13. x x x.
En Banc held that absent any cogent
explanation [to not] comply with the rules, the
rules must apply to the petitioner as they do to xxxx
all.

ISSUE: Sec. 3. Manner of filing.

The filing of pleadings,
Whether or not this Court should require the appearances, motions, notices,
orders, judgments and all other
CTA En Banc to give due course to C.T.A. E.B.
papers shall be made by
No. 145 despite PNBs failure to comply with the presenting the original copies
formal requirements of the Revised Rules of the thereof, plainly indicated as
Court of Tax Appeals and the Rules of Court in such, personally to the clerk of
court or by sending them by
filing a petition for review with the CTA En registered mail. In the first
Banc? case, the clerk of court shall
endorse on the pleading the
HELD: date and hour of filing. In the
second case, the date of the
mailing of motions, pleadings, or
NO. any other papers or payments
or deposits, as shown by the
This Court would like to underscore the post office stamp on the
envelope or the registry
fact that PNB failed to comply with not just one,
receipt, shall be considered
but three procedural rules when it filed its as the date of their filing,
petition for review with the CTA En Banc. payment, or deposit in court.
The envelope shall be attached
Petition was filed late to the record of the case.
(Emphases ours.)

It is stated under Section 3, Rule 1 of

the Revised Rules of the Court of Tax Appeals
that the Rules of Court shall apply suppletorily.
To recall, PNB filed its petition with the
CTA En Banc four days beyond the extended
period granted to it to file such petition. PNB
argues that it was filed on time since it was
mailed on the last day of the extended period,
which was on December 23, 2005. It has been
established that a pleading filed by ordinary consecutive
mail or by private messengerial service x x x is
deemed filed on the day it is actually received by
the court, and not on the day it was mailed or
delivered to the messengerial service.14[34] In
Benguet Electric Cooperative, Inc. v. National
Labor Relations Commission,15[35] we said:
The established rule is that the
date of delivery of pleadings to a
private letter-forwarding agency
is not to be considered as the
date of filing thereof in court,
and that in such cases, the date
of actual receipt by the court,
and not the date of delivery to
the private carrier, is deemed
the date of filing of that
pleading.16[36]
It is worthy to note that PNB already
asked for an additional period of 15 days within
which to file its petition for review with the CTA
En Banc. This period expired on December 23,
2005. Knowing fully well that December 23,
2005 not only fell on a Friday, followed by three
non-working days, but also
belonged to the busiest holiday season of the
year, PNB should have exercised more
prudence and foresight in filing its petition.
Moreover, PNB offered no justification
as to why it sent its petition via ordinary mail
instead of registered mail. Service by ordinary
mail is allowed only in instances where no
registry service exists.17[38] Rule 13, Section
7 reads:
Sec. 7. Service by mail.
Service by registered mail shall
be made by depositing the copy
in the post office, in a sealed
envelope, plainly addressed to
the party or his counsel at his
office, if known, otherwise at his
residence, if known, with
postage fully pre-paid, and with
instructions to the postmaster to
return the mail to the sender
after ten (l0) days if undelivered.
If no registry service is
available in the locality of
either the sender or the
addressee, service may be
done by ordinary mail.
(Emphasis ours.)
Petition was not accompanied by the
required duplicate originals or certified true
copies of the decision and resolution being
assailed, and Affidavit of Service
Section 2, Rule 6 of the Revised Rules
of the Court of Tax Appeals:
SEC. 2. Petition for
review; contents. The petition
for review shall contain
allegations showing the
jurisdiction of the Court, a
concise statement of the
complete facts and a summary
statement of the issues involved
in the case, as well as the
reasons relied upon for the
review of the challenged
decision. The petition shall be
verified and must contain a
certification against forum
shopping as provided in Section
3, Rule 46 of the Rules of Court.
A clearly legible duplicate
original or certified true copy
of the decision appealed from
shall be attached to the
petition. (Emphasis supplied.)
Section 4(b), Rule 8 of the Revised
Rules of the Court of Tax Appeals:
Sec. 4(b) An appeal
from a decision or resolution of
the Court in Division on a
motion for reconsideration or
new trial shall be taken to the
Court by petition for review as
provided in Rule 43 of the Rules
of Court. The Court en banc
shall act on the appeal.
Sections 6, Rule 43 of the Rules of
Court:
Sec. 6. Contents of the
petition. The petition for review
shall (a) state the full names of
the parties to the case, without
impleading the court or
agencies either as petitioners or
respondents; (b) contain a
concise statement of the facts
and issues involved and the
grounds relied upon for the
review; (c) be accompanied by
a clearly legible duplicate
original or a certified true
copy of the award, judgment,
final order or resolution
appealed from, together with
certified true copies of such
material portions of the record
referred to therein and other
supporting papers; and (d)
contain a sworn certification
against forum shopping as
provided in the last paragraph of
section 2, Rule 42. The petition
shall state the specific material
dates showing that it was filed
within the period fixed herein.
(Emphasis ours.)
This Court has already upheld the
mandatory character of attaching
duplicate originals or certified true
copies of the assailed decision to a
petition for review.18[39] Moreover,
pursuant to Section 7, Rule 43 of the
Rules of Court, non-compliance with
such mandatory requirement is a
sufficient ground to dismiss the petition,
viz:
 Sec. 7. Effect of failure
to comply with requirements.
The failure of the petitioner to Although the failure to attach the
comply with any of the foregoing required affidavit of service is not fatal if the
requirements regarding the
payment of the docket and other registry receipt attached to the petition clearly
lawful fees, the deposit for shows service to the other party, 19[40] it must
costs, proof of service of the be remembered that this was not the only rule of
petition, and the contents of
procedure PNB failed to satisfy. In Suarez v.
and the documents which
should accompany the Judge Villarama, Jr.20[41] we said:
petition shall be sufficient
ground for the dismissal It is an accepted tenet
thereof. (Emphasis ours.) that rules of procedure must be
faithfully followed except only
Anent the failure to attach the Affidavit when, for persuasive and
of Service, Section 13, Rule 13 of the Rules of weighting reasons, they may be
relaxed to relieve a litigant of an
Court provides:
injustice commensurate with his
failure to comply with the
Sec. 13. Proof of prescribed procedure.
service. Proof of personal Concomitant to a liberal
service shall consist of a written interpretation of the rules of
admission of the party served, procedure, however, should be
or the official return of the an effort on the part of the party
server, or the affidavit of the invoking liberality to adequately
party serving, containing a full explain his failure to abide by
statement of the date, place and the rules.21[42]
manner of service. If the service
is by ordinary mail, proof thereof
shall consist of an affidavit of
the person mailing of facts
showing compliance with
section 7 of this Rule. If service This Court agrees with the CTA En
is made by registered mail, Banc that PNB has not demonstrated any
proof shall be made by such
cogent reason for this Court to take an exception
affidavit and the registry receipt
issued by the mailing office.
The registry return card shall be
filed immediately upon its
receipt by the sender, or in lieu
thereof the unclaimed letter
together with the certified or
sworn copy of the notice given
by the postmaster to the
addressee.
and excuse PNBs blatant disregard of the basic
procedural rules in a petition for review.
Furthermore, the timely perfection of an appeal
is a mandatory requirement. One cannot
escape the rigid observance of this rule by
claiming oversight, or in this case, lack of
foresight. Neither can it be trifled with as a
mere technicality to suit the interest of a party.
Verily, the periods for filing petitions for review
and for certiorari are to be observed religiously.
Just as [the] losing party has the privilege to file
an appeal within the prescribed period, so does
the winner have the x x x right to enjoy the
finality of the decision.22[43] In Air France
Philippines v. Leachon,23[44] we held:
Procedural rules setting
the period for perfecting an
appeal or filing an appellate
petition are generally
inviolable. It is doctrinally
entrenched that appeal is not a
constitutional right but a mere
statutory privilege. Hence,
parties who seek to avail of the
privilege must comply with the
statutes or rules allowing it. The
requirements for perfecting an
appeal within the reglementary
period specified in the law must,
as a rule, be strictly followed.
Such requirements are
considered indispensable
interdictions against needless
delays, and are necessary for
the orderly discharge of the
judicial business. For sure, the
perfection of an appeal in the
manner and within the period
set by law is not only
mandatory, but jurisdictional as
well. Failure to perfect an
appeal renders the judgment
appealed from final and
executory.24[45]
While it is true that the Court may
deviate from the foregoing rule, this is true only if
the appeal is meritorious on its face. The Court
has not hesitated to relax the procedural rules in
order to serve and achieve substantial justice.
In the circumstances obtaining in this case
however, the occasion does not warrant the
desired relaxation.25[46] PNB has not offered
any meritorious legal defense to justify the
suspension of the rules in its favor. The CTA
Division has taken into consideration all of the
evidence submitted by the PNB, and actually
allowed it a refund of 1,428,661.66, in addition
to the 4,154,353.42 the BIR already gave. The
CTA Division explained why it disallowed the
remaining balance of 445,578.92 in its
Decision dated August 11, 2005. When PNB
moved to reconsider this decision, it did not offer
the CTA any other evidence or explanation
aside from the ones the CTA Division had
already evaluated. Nevertheless, the CTA
carefully considered and deliberated anew
PNBs grounds, albeit they found them lacking in
merit. Thus, it cannot be said that PNB was
deprived of its day in court, as in fact, it was
given all the time it had asked for.
While PNB may believe that it has a
meritorious legal defense, this must be weighed
against the need to halt an abuse of the
flexibility of procedural rules. It is well
established that faithful compliance with the
Rules of Court is essential for the prevention
and avoidance of unnecessary delays and for
the organized and efficient dispatch of judicial
business.26[47]
MODES OF SERVICE
ABERCA vs. VER
G.R. No. 166216
FACTS:
On 25 January 1983, several suspected
subversives who were arrested and detained by
the military filed a complaint for damages with
the Regional Trial Court of Quezon City against
Gen. Fabian Ver and several subordinate
officers.
In their complaint, the plaintiff-appellees alleged
that they were arrested and detained by Task
Force Makabansa on the strength of defective
search warrants; that while under detention and
investigation, they were subjected to physical
and psychological harm, torture and other
brutalities to extort from them confessions and
other information that would incriminate them;
and that by reason thereof, they suffered actual
and moral damages.
Defendants-appellants, through their counsel,
the then Solicitor General Estelito Mendoza,
filed a motion to dismiss on the following
grounds: (1) since the privilege of the writ of
habeas corpus was then suspended, the trial
court cannot inquire into the circumstances
surrounding plaintiffs-appellees arrests; (2) the
defendants-appellants are immune from liability
for the reason that they were then performing
their official duties; and (3) the complaint states
no cause of action.
In an order dated November 8, 1983, the trial
court granted defendants-appellants motion to
dismiss and ordered the case dismissed.
Plaintiffs-appellees filed a motion to reconsider
and set aside the order of dismissal. In an order
dated May 11, 1984, the trial court declared the
order of November 8, 1983 final.
Plaintiffs-appellees again filed a motion for
reconsideration of the order dated May 11,
1984. In an order dated September 21, 1984,
the trial court denied the motion for
reconsideration.
On March 15, 1985, plaintiffs-appellees went to
the Supreme Court on a petition for review on
certiorari, seeking to annul and set aside the
orders of the trial court dated November 8, 1983,
May 11, 1984 and September 21, 1984. The
case was docketed as G.R. No. 69866.
While the case was pending in the Supreme
Court, the so-called EDSA revolution took
place. As a result, the defendants-appellants
lost their official positions and were no
longer in their respective office addresses as
appearing in the record.
On April 15, 1988, the Supreme Court rendered
a decision annulling and setting aside the
assailed orders and remanded the case to the
trial court for further proceedings.
However, trial could not proceed immediately
because on June 11, 1988, the record of the
case was destroyed when fire razed the City
Hall of Quezon City. It was only on October 9,
1989 when plaintiffs-appellees sought a
reconstitution of the record of the case. The
record shows that the petition for
reconstitution was set for hearing on
October 27, 1989. However, there is nothing
in the record to show that defendants-
appellants or their counsel were notified. For
lack of an opposition, the petition for
reconstitution was granted in an order dated
March 12, 1990.
On August 15, 1990, plaintiffs-appellees filed a
motion praying that defendants-appellants be
required to file their answer. However, the
record as reconstituted did not show who are the
lawyers of the defendants-appellants
considering that Estelito Mendoza, who had
represented them in his capacity as Solicitor
General, was no longer holding that position.
Furthermore, defendants-appellants were
also no longer occupying the positions they
held at the time the complaint was filed.
Thus, in an order dated August 17, 1990,
plaintiffs-appellees were directed to report to
the trial court the addresses and
whereabouts of defendants-appellants so
that they could be properly notified.
Instead of complying with the order of
August 17, 1990, plaintiffs-appellees filed a
motion to declare defendants-appellants in
default. The trial court deferred resolution of
this motion and instead, it issued an order
on September 10, 1990 directing that a copy
of the order dated August 17, 1990 be
furnished to new Solicitor General Francisco
Chavez to enable him to take action pursuant
to Section 18, Rule 3 of the Rules of Court,
and to former Solicitor General Estelito
Mendoza to enable him to give notice as to
whether he [would] continue to represent the
defendants-appellants in his private
capacity. As it said in its order, the trial court
took this action "in view of the change in
government and corresponding change in
the addresses and circumstances of the
defendants-appellants who may not even be
aware of the decision of the Supreme Court
in case G.R. No. L-69866 and of the
reconstitution of records in this case xxx."
On October 1, 1990, former Solicitor General
Mendoza filed a manifestation informing the trial
court that his appearance as defendants-
appellants counsel terminated when he ceased
to be Solicitor General and that he was not
representing them in his private capacity. On his
part, Solicitor General Chavez finally filed on
December 11, 1990 a notice of withdrawal of
appearance, citing Urbano v. Go, where the
Supreme Court said that "the Office of the
Solicitor General (OSG) is not authorized to
represent a public official at any stage of a
criminal case or in a civil suit for damages
arising from a felony."
In an order dated December 27, 1990, the trial
court denied plaintiffs-appellees motion to
declare defendants-appellants in default,
emphatically pointing out that defendants-
appellants were not duly notified of the
decision of the Supreme Court. In the same
order, the trial court directed plaintiffs-
appellees to comply with the order of August
17, 1990 within ten (10) days from notice,
with a warning that the case [would] be
archived and eventually dismissed if
plaintiffs-appellees failed to furnish to the
court the addresses of defendants-
appellants. Plaintiffs-appellees moved to
reconsider the order dated December 27,
1990 but in an order dated February 1, 1991,
the trial court denied the motion, stating that
"without actual notice of the judgment of the
Supreme Court xxx the defendants-
appellants herein would not be aware that
they should file a responsive pleading" and
that, therefore, "to consider the defendants-
appellants in default would be tantamount to
lack of due process xxx."
For failure of the plaintiffs-appellees to
comply with the orders dated August 17,
1990 and December 27, 1990, the trial court
dismissed the case without prejudice in its
order dated March 7, 1991. Subsequently,
however, in an order dated June 4, 1991, the
trial court set aside the order of dismissal
and reinstated the case. It also approved
plaintiffs-appellees request to serve the
notice to file answer or responsive pleading
by publication.
In a compliance dated September 12, 1991,
plaintiffs-appellees informed the trial court
that the following notice was published in
the Tagalog newspaper BALITA in its issues
of August 29, 1991 and September 5, 1991:

No answer was filed by defendants-
appellants within the period stated in the
notice. On motion of plaintiffs-appellees, the
trial court in its order dated December 5,
1991 declared defendants-appellants in
default and directed plaintiffs-appellees to
present their evidence ex-parte.
ISSUE:
Whether or not there was a valid notice given to
the respondents.
HELD:
No.
The Rules of Court has been laid down to insure
the orderly conduct of litigation and to protect
the substantive rights of all party litigants. It is for
this reason that the basic rules on the modes of
service provided under Rule 13 of the Rules of
Court have been made mandatory and, hence,
should be strictly followed. In Marcelino
Domingo v. Court of Appeals, 14 the Court wrote:
Section 11, Rule 13 of the Rules of Court states:
SEC. 11. Priorities in modes of service and
filing. Whenever practicable, the service and
filing of pleadings and other papers shall be
done personally. Except with respect to papers
emanating from the court, a resort to other
modes must be accompanied by a written
explanation why the service or filing was not
done personally. A violation of this Rule may be
cause to consider the paper as not filed.
Section 11 is mandatory. In Solar Team
Entertainment, Inc. v. Judge Ricafort, the Court
held that:
Pursuant to 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 are preferred for
obvious reasons. Plainly, such should
expedite action or resolution on a pleading,
motion or other paper; and conversely,
minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail,
considering the inefficiency of postal
service. Likewise, personal service will do
away with the practice of some lawyers who,
wanting to appear clever, resort to the
following less than ethical practices: (1)
serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for
instance, responsive pleadings or an
opposition; or (2) upon receiving notice from
the post office that the registered parcel
containing the pleading of or other paper
from the adverse party may be claimed,
unduly procrastinating before claiming the
parcel, or, worse, not claiming it at all,
thereby causing undue delay in the
disposition of such pleading or other papers.
If only to underscore the mandatory nature
of this innovation to our set of adjective
rules requiring personal service whenever
practicable, Section 11 of Rule 13 then gives
the court the discretion to consider a
pleading or paper as not filed if the other
modes of service or filing were resorted to
and no written explanation was made as to
why personal service was not done in the
first place. The exercise of discretion must,
necessarily, consider the practicability of
personal service, for Section 11 itself begins
with the clause "whenever practicable."
We thus take this opportunity to clarify that
under Section 11, Rule 13 of the 1997 Rules
of Civil Procedure, 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.
For the guidance of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 is
mandated.
In the case at bench, the respondents were
completely deprived of due process when
they were declared in default based on a
defective mode of service service of notice
to file answer by publication. The rules on
service of pleadings, motions, notices,
orders, judgments, and other papers were
not strictly followed in declaring the
respondents in default. The Court agrees
with the CA that the RTC committed
procedural lapses in declaring the
respondents in default and in allowing the
petitioners to present evidence ex-parte.
As correctly observed by the CA, the RTCs
August 17, 1990 Order was an attempt to serve
a notice to file answer on the respondents by
personal service and/or by mail. These proper
and preferred modes of service, however, were
never resorted to because the OSG abandoned
them when the petitioners failed to comply with
the August 17, 1990 RTC order requiring them
to report the addresses and whereabouts of the
respondents. Nevertheless, there was still
another less preferred but proper mode of
service available substituted service - which is
service made by delivering the copy to the clerk
of court, with proof of failure of both personal
service and service by mail. Unfortunately, this
substitute mode of service was not resorted to
by the RTC after it failed to effect personal
service and service by mail. Instead, the RTC
authorized an unrecognized mode of service
under the Rules, which was service of notice to
file answer by publication.
Considering the fact that the OSG could no
longer represent the respondents, the RTC
should have been more patient in notifying the
respondents through personal service and/or
service by mail. It should not have simply
abandoned the preferred modes of service when
the petitioners failed to comply with its August
17, 1990 order with the correct addresses of the
respondents. More so, it should not have
skipped the substituted service prescribed under
the Rules and authorized a service of notice on
the respondents to file answer by publication.
To stress, the only modes of service of
pleadings, motions, notices, orders,
judgments and other papers allowed by the
rules are personal service, service by mail
and substituted service if either personal
service or service by mail cannot be made,
as stated in Sections 6, 7 and 8 of Rule 13 of
the Rules of Court. Nowhere under this rule
is service of notice to file answer by
publication is mentioned, much less
recognized.
Garrucho vs. CA
Peter D. Garrucho, then Secretary of Tourism,
sent a letter dated July 18 and 26, 1990 to the
Bureau of Immigration requesting the inclusion
in the Hold-Departure list of Ramon Binamira
and Faustino Roberto in connection with the
investigation being conducted by the DOJ
involving the anomalous transactions in
government affecting the Philippine Tourism
Authority. The BI Commisssioner granted the
request and issued Hold Departure Order No.
333 and 334. Faustino, with Ramon as
complaint-intervenor, filed a complaint for
prohibition and damages against Peter before
the RTC of Makati City, where he Peter was
represented by his lawyer Remollo and
Associates with office address at Suite No. 23,
Legaspi Suites, 178 Salcedo St., Legaspi
Village, Makati City. When the trial court
rendered judgment against Peter, he appealed
the decision to the Court of Appeals. The CA
then directed him to submit his appellants brief,
which notice was sent to his counsels address;
the notice was returned to the court with notation
Return to Sender, Addressee Moved Out;
another notice was sent to Peter, this time to his
former office at the Department of Toursim,
Agrifino Circle, Manila. The notice returned to
court, again with notation unclaimed. Thus, the
CA issued a minute resolution on June 23, 1999
declaring the service of notice on Peter as
complete as of May 5, 1999. It also issued a
Resolution on November 23, 1999 dismissing
the appeal of Peter for failure to file the
appellants brief. Ramon then filed a Motion for
issuance of writ of execution which the trial court
granted and the court sheriff served on Peter at
his office address in Benpres Building, Pasig
City.
Aggrieved, Peter filed a petition for certiorari with
the Supreme Court to set aside the CA
Resolutions as well as the order of the RTC
granting writ of execution. According to him, he
never received copies of the CA Resolutions as
he had resigned as DOT Secretary as of
January 1991 and had gone back to the private
sector. His counsel on the other hand moved his
office and residence to Dumaguete City. He
argued that the RTC and the CA were obliged to
take notice of his resignation as DOT Secretary
and appointment as Executive Secretary and
resignation thereof; he was deprived of his right
to due process since he was never informed of
the CA resolutions; considering his stature in
business and politics, it was easy to locate his
whereabouts, as in fact the sheriff did when he
served the writ of execution in his office address
at Benpres Building.
ISSUE: whether or not it is the responsibility of a
party to inform the court of the change of his
address so that in the event the court orders that
an order or resolution be served on the said
party to enable him to receive the said resolution
or order.
Held:
The records show that the counsel of the
petitioner in the trial court was the law firm of
Remollo & Associates with offices at Suite No.
23, Legaspi Suites, 178 Salcedo Street, Legaspi
Village, Makati City. Under Section 2, Rule 44
of the 1997 Rules of Civil Procedure, the
counsel of the parties in the court of origin shall
be considered as their counsel in the CA.
Section 2, Rule 13 of the Rules of Civil
Procedure provides that if any party has
appeared by counsel, service upon him shall be
made upon his counsel unless served upon the
party himself is ordered by the trial court. Notice
or service made upon a party who is
represented by counsel is a nullity. Notice to the
client and not to his counsel of record is not
notice in law.[12] The rule admits of exceptions,
as when the court or tribunal orders service
upon a party or when the tribunal defendant is
waived.
In the absence of a proper and adequate notice
to the court of a change of address, the service
of the order or resolution of a court upon the
parties must be made at the last address of their
counsel on record. It is the duty of the party and
his counsel to device a system for the receipt of
mail intended for them, just as it is the duty of
the counsel to inform the court officially of a
change in his address. It is also the
responsibility of a party to inform the court of the
change of his address so that in the event the
court orders that an order or resolution be
served on the said party to enable him to receive
the said resolution or order.
In the present case, the law firm of Remollo &
Associates, the petitioners counsel of record,
moved out from their office at the Legaspi Suites
to Dumaguete City without informing the court of
such fact. Based on its records, the CA believed
that the law office of the petitioners counsel was
still at the Legaspi Suites and sent copies of its
resolutions to the counsel of the petitioner at the
said address.
Neither did the petitioner inform the court of his
home or office address after his resignation as
Secretary of the Department of Tourism where
copies of the said order or resolution could be
sent. Notwithstanding his stature in the
business community, the CA cannot take judicial
notice of the petitioners home address or his
office address after his departure as Secretary
of the Department of Tourism or as Executive
Secretary of the President.
Indeed, the petitioner has nobody but himself to
blame. It was his responsibility to check the
status of his appeal in the CA from time to time,
from his counsel or from the CA. He failed to do
so. As we held in Bernardo v. Court of Appeals:
Litigants, represented by counsel, should not
expect that all they need to do is sit back, relax
and await the outcome of their case. They
should give the necessary assistance to their
counsel for what is at stake is their interest in the
case.
In his concurring opinion in Republic vs.
Sandiganbayan, Mr. Justice Teodoro R. Padilla
emphasized the value and significance of the
partys presence and diligence in the
advancement of his cause, thus:
xxx An almost lifetime of experience in litigation
is the best witness to the indispensability of
partys presence (aside from his lawyer, in case
he has the assistance of counsel) in order to
litigate with any reasonable opportunity of
success. xxx especially during the cross-
examination of adverse partys witnesses
where the truth must be determined every
counsel worth his salt must have the assistance
and presence of his client on the spot, for the
client invariably knows the facts far better than
his counsel. In short, even in civil cases, the
presence of party (as distinguished from his
lawyer alone) is essential to due process.
True enough, the party-litigant should not rely
totally on his counsel to litigate his case even if
the latter expressly assures that the formers
presence in court will no longer be needed. No
prudent party will leave the fate of his case
entirely to his lawyer. Absence in one or two
hearings may be negligible but want of inquiry or
update on the status of his case for several
months (four, in this case) is inexcusable. It is
the duty of a party-litigant to be in contact with
his counsel from time to time in order to be
informed of the progress of his case. Petitioner
simply claims that he was busy with his gravel
and sand and trading businesses which involved
frequent traveling from Manila to outlying
provinces. But this was not a justifiable excuse
for him to fail to ask about the developments in
his case or to ask somebody to make the query
for him. Petitioner failed to act with prudence
and diligence; hence, his plea that he was not
accorded the right to due process cannot elicit
this Courts approval or even sympathy.
G.R. No. 131541 October 20, 2000
THERMOCHEM INCORPORATED and
JEROME O. CASTRO, petitioners,
vs.
LEONORA NAVAL and THE COURT OF
APPEALS, respondents.
Facts:
This damage suit arose from a collision of
vehicles based on the following facts:
"(O)n May 10, 1992, at around 12:00
o'clock midnight, Eduardo Edem was
driving a "Luring Taxi" along Ortigas
Avenue, near Rosario, Pasig, going
towards Cainta. Prior to the collision, the
taxicab was parked along the right side
of Ortigas Avenue, not far from the
Rosario Bridge, to unload a passenger.
Thereafter, the driver executed a U-turn
to traverse the same road, going to the
direction of EDSA. At this point, the
Nissan Pathfinder traveling along the
same road going to the direction of
Cainta collided with the taxicab. The
point of impact was so great that the
taxicab was hit in the middle portion and
was pushed sideward, causing the
driver to lose control of the vehicle. The
taxicab was then dragged into the
nearby Question Tailoring Shop, thus,
causing damage to the said tailoring
shop, and its driver, Eduardo Eden,
sustained injuries as a result of the
incident."
Private respondent, as owner of the taxi, filed a
damage suit against petitioner, Thermochem
Incorporated, as the owner of the Nissan
Pathfinder, and its driver, petitioner Jerome
Castro in RTC Branch 150 of Makati City. After
trial, the lower court adjudged petitioner Castro
negligent and ordered petitioners, jointly and
severally, to pay private respondent actual,
compensatory and exemplary damages plus
attorney's fees and costs of suit.
On appeal, the Court of Appeals affirmed the
judgment of the court a quo. Hence, this petition
for review on certiorari. The petition was
denied on February 2,1998 for failure to
submit an explanation why no personal
service of copies of certain pleadings was
made as required by Rule 13, Section 11 of
the 1997 Rules of Civil
Procedure. Upon petitioners' motion for
reconsideration, the petition was reinstated and
private respondent was required to file her
Comment in a Resolution dated June 22,
1998. A copy of the said Resolution was sent
by registered mail to private respondent's
counsel but the same was returned to
sender. In a separate Resolution issued on
the same date, this Court ordered that a copy
of the June 22, 1998 Resolution be served
personally on private respondent's
counsel. As the said Resolution was also
returned unserved, "the Court Resolved to
consider the said Resolution as
SERVED." After more than a year, no Comment
has been filed. Considering that private
respondent was given only ten (10) days to file
her Comment, that period had already lapsed
ten days after the June 23, 1999 Resolution
which stated that the June 22, 1998 resolution
as "served".
Principle/Doctrine:
Service of notice or other pleadings which
are required by the rules to be furnished to
the parties must be made on their last
address on record. If they are represented by
counsel, such notices shall be sent instead
to the counsel's last given address on record
in the absence of a proper and adequate
notice to the court of a change of
address, unless service upon the party
himself is ordered by the court. It is the party
and his counsel's responsibility to device a
system for the receipt of mail intended for
them just as it is the duty of counsel to inform
the court of a change in his address. In the case
at bar, private respondent's counsel never
notified the Court of any change of his address
or whether he no longer holds office in his last
address of record. Neither was the Court
informed if his ties with his client has been
severed. Insofar as the Court is concerned, the
last address on record is the place where all
notices shall be served until the Court is officially
informed to the contrary. What is the effect of
the failure of a private respondent to comply with
a court order to file Comment?
Courts are given the option to dispense with
the filing of the Comment and consider the
case as deemed submitted for decision.
Under Rule 46, Section 7 of the 1997 Rules of
Civil Procedure, when the respondent in an
original action filed with the court fails to file its
comment, the case may be decided on the basis
of the evidence on record without prejudice to
disciplinary action against the disobedient party.
Concomitant thereto is the rule that pursuant to
Rule 51, Section 1(B)(1),where no comment is
filed upon the expiration of the period to
comment in an original action or a petition for
review, the case shall be deemed submitted for
decision. Both provisions are applicable to a
petition for review filed with the Supreme Court
as provided in Rule 56, Section 2(a) of the
Rules. Moreover, a lawyer who fails to submit
the required Comment manifests willful
disobedience to a lawful order of the Supreme
Court, a clear violation of the Canon of
Professional Ethics. Counsel must remember
that his actions and omissions are binding on his
client. He should not neglect legal matters
entrusted to him as his negligence therefrom
shall render him liable.
GENARO CUBAR,FLORA CUBAR, NARCISO
CUBAR, CRESENCIA CUBAR, ROSALIO
CUBAR, PETRA T. VDA. DE CUBAR,
FELOMINO CUBAR, FAUSTO CUBAR, et
al., petitioners,
vs.
HON. RAFEL T. MENDOZA, JUDGE of the
Court of First Instance of Cebu (Branch VI),
VICTORIANO ENAD, RAFAEL ENAD, SIMON
VELOSO and ERLINDA PONCE, respondents.
FACTS:
Herein petitioners filed a complaint with
the Court of First Instance of Cebu,
assigned to Branch V thereof, then
presided by Judge Mariano A. Zosa for
the nullification of certain documents
alleged in the complaint.
Petitioners claiming to be "illiterate
mountain people" were allegedly have
signed a document of a right of way in
favor of the government over their lands
for the construction of a road leading to
a mining site however, it turned out that
said documents were authorizations for
entry into their 'lets by private
respondents for the purpose of exploring
rich rock phosphate deposits
the trial court rendered judgment on
October 1, 1979 declaring the subject
documents null and void, and adjudging
private respondents liable to pay
damages to petitioners.
 A copy of said decision was served The argument that Atty.Gonzaga had left Cebu
to Atty. Romeo Gonzaga, private City and has resided in Legaspi City cannot be
respondents' counsel of record and given credit. It is already well settled rule that
was received his wife at his given when a party is represented by counsel, notice
address on November 23, 1979. should be made upon the counsel of record 1 at
No appeal having been duly perfected his given address, to which notices of all kind
within the reglementary period. An order emanating from the court should be sent in the
of execution was issued. absence of a proper and adequate notice to the
On January 14, 1980, private court of a change of address.
respondents, through a new lawyer,
A lawyer's withdrawal as counsel must be made
Atty. Ponciano H. Alivio, filed a motion
in a formal petition filed in the case, without
for reconsideration of the Order of
which, notice of judgment rendered in the case
January 8, 1980 and to quash the writ of
served on the counsel of record, is, for all legal
execution, on the ground that the
purposes notice to the client, the date of receipt
decision is not yet final and
of which is considered the starting point from
executory for lack of valid service
which the period of appeal prescribed by law
thereof.
shall begin to run. 3 Not having withdrawn
Since Branch V was then vacant, the
formally as counsel in the case, Atty. Romeo
motion for reconsideration was resolved
Gonzaga continued to be the counsel of
by Branch VI, and the latter issued
record 4 and was, for all legal purpose, private
order setting aside the Order of
respondents' attorney upon whom the court's
execution and quashing the writ.
processes may be served, as they were in fact
Petitioners Motion for Reconsideration
duly served.
was denied. Hence, this petition.
Consequently, the decision of the trial court,
ISSUE:
copy of which was served upon respondents'
WON there is a valid service of judgment? counsel on November 23, 1979, is already final
and executory at the time the order of execution
RULING: was issued on January 8, 1980, no appeal
having been taken therefrom within the
YES. reglementary period provided by law. Time and
again, this court has ruled that once a judgment
That the decision of the trial court was received
becomes final and executory, the prevailing
by the wife of Atty. Romeo Gonzaga, private
party can have it executed as a matter of right,
respondents' counsel of record at his given
and the granting of execution becomes a
address on November 23, 1979, is not disputed.
ministerial duty of the court. 5 Therefore,
It is likewise not disputed that said wife has been
respondent judge gravely abused his discretion
receiving prior notices of the case for her
in issuing the herein questioned order, in the
husband at the office of the latter, who had
absence of any justification, both legal and
always acted as if he had received said notices
factual, that would warrant the stay of execution.
himself for he had duly complied therewith. With
these facts, no other ruling can be had but that WHEREFORE, Order of respondent judge is
the service of the decision in question is hereby annulled and set aside.
valid and binding. It is fully being in
accordance with Rule 13, Section 4, on
personal service, said wife being of sufficient
discretion to receive notice of final judgment.

[G.R. No. 143791. January 14, 2005]

PETER D. GARRUCHO, petitioner,
vs. COURT OF APPEALS, HON.
OSCAR B. PIMENTEL (in his capacity
as Presiding Judge of the Regional
Trial Court, Branch 148, Makati City),
SHERIFF RENATO C. FLORA (in his
capacity as Branch Sheriff), and
RAMON BINAMIRA, respondents.
FACTS:
In a Letter dated July 18 and 26, 1990, then
Secretary of the Department of Tourism and
Chairman of the Board of Directors of the
Philippine Tourism Authority (PTA) petitioner
Peter D. Garrucho requested then
Commissioner of Immigration and Deportation
Andrea Domingo to issue Hold Departure
Orders against Ramon Binamira and Faustino
Roberto. This was in connection with the
investigation being conducted by the
Department of Justice involving anomalous
transactions in government securities affecting
the PTA which entailed the loss of
some P161,000,000.00. Commissioner
Domingo granted the request and issued Hold
Departure Order Nos. 333 and 334 against
Binamira and Roberto on the said date. Roberto
requested the lifting of the order, and Secretary
Garrucho opposed the same in a Letter dated
August 22, 1990.
Roberto then filed a complaint for
prohibition and damages against petitioner
Garrucho and Commissioner Domingo in the
Regional Trial Court (RTC) of Makati
City. Binamira, for his part, filed a complaint-in-
intervention in the case. Petitioner Garrucho
was represented by private practitioners
Remollo & Associates, whose offices were
located at Suite No. 23, Legaspi Suites, 178
Salcedo Street, Legaspi Village, Makati City.
On April 16, 1997, the trial court rendered
judgment in favor of respondent Binamira and
further, Hold Departure Order No. 333 having
been found to be void ab initio, unconstitutional
and illegal, the preliminary injunction is hereby
declared permanent.
The petitioner and Commissioner Domingo
appealed the decision to the Court of Appeals
(CA). On March 9, 1999, the CA sent a notice
by registered mail to the petitioners counsel
directing the latter to file his brief as
appellant. However, the notice was returned to
the court. The envelope containing the said
notice was stamped, thus: Return To Sender,
Moved Out. The CA resent the notice dated
March 5, 1999 to the petitioner at his office at
the Department of Tourism building, Agripino
Circle, Manila. The notice was returned to the
CA on May 5, 1999, again, having been
unclaimed. The CA issued a minute
resolution on June 23, 1999, declaring that the
service of notice on the petitioner was complete
as of May 5, 1999. A copy of the said resolution
was sent by registered mail to the petitioner in
the Department of Tourism.
On November 26, 1999, the appellate court
issued a Resolution dismissing the appeal of the
petitioner for his failure to file his brief. A copy of
the resolution was sent by registered mail to the
petitioners counsel, but the said resolution was
returned to the court with a notation stamped on
the envelope Return To Sender, Moved
Out. The CA then had a separate copy of the
notice served by registered mail on the petitioner
at his office address, but the same was returned
to the CA with the notation Unclaimed.
The appellate court issued an entry of
judgment. A copy of the said entry of judgment
was sent to the petitioner by registered mail at
the Department of Tourism. Thus, the appeal of
Commissioner Domingo was considered
submitted for decision after filing her brief and
the filing by the plaintiff-appellee of his brief.
Binamiras motion for a writ of execution
against the petitioner was granted by the trial
court on June 22, 2000. The trial court issued a
writ of execution on June 28, 2000. The sheriff
served a copy of the said writ on the petitioner
on July 12 and 17, 2000, at his office at the
Benpress Building, Pasig City.
The petitioner filed a petition
for certiorari under Rule 65 of the Rules of Court
against the CA, the RTC, Sheriff Flora and
Binamira, for the nullification of the CA
resolutions dated June 23, 1999 and November
26, 1999, the June 22, 2000 Order of the RTC,
as well as the June 28, 2000 writ of execution
issued by the latter court.
The petitioner alleged, inter alia, that the
CA and RTC erred in issuing the assailed
resolutions and order because he never
received copies of the assailed CA resolutions
which were sent to him at his former office at the
Department of Tourism. He averred that he had
resigned as Secretary of the Department of
Tourism and Chairman of the PTA as early as
January 9, 1991 and was no longer holding
office thereat. Since then, he had gone back to
the private sector and held office at 417
Benpress Building, Meralco Avenue corner
Echague Road, Ortigas Center, Pasig City. His
counsel failed to receive his copy of the CA
resolution because he transferred his office at
Suite No. 23, Legaspi Suites, 178 Salcedo
Street, Legaspi Village, Makati City, and his
residence to Dumaguete City, Negros
Occidental. He further alleged that the CA and
the RTC were obliged to take judicial notice of
his resignation as Tourism Secretary and the
appointment of his successor, his appointment
as Executive Secretary by President Fidel E.
Ramos in July 1992, and his resignation from
the said position in August/September 1992.
The petitioner argues that he was deprived
of his right to due process when the CA and the
RTC failed to serve the copies of the assailed
resolutions and order. He points out that his
present office was not difficult to locate,
considering his stature in business and politics
in the country. He avers that there was no
reason why the copies of the assailed
resolutions and order could not be sent to him at
the same office since the sheriff was able to
locate his office on July 12 and 17, 2000.
In his comment on the petition, the private
respondent alleged that the petitioner was
mandated to inform his counsel of his present
address after he (the petitioner) resigned as
Secretary of the Department of Tourism. It was
also the duty of the petitioners counsel to inform
the trial court of his new office address. The
private respondent asserts that the petitioner
must suffer the dire consequences of his and his
counsels inexcusable negligence.
The respondent further contends that while
the CA and the RTC were mandated to take
judicial notice of the petitioners resignation and
the appointment of his successor, they were not
mandated to take judicial notice of the
petitioners office address after he resigned from
the government, or of the address of his counsel
in Dumaguete City, Negros Occidental. The
respondent asserts that such failure of the
petitioner to inform the said courts of his address
and that of his counsel constitutes inexcusable
neglect. Thus, if the petitioners appeal was
dismissed on account of his failure to file his
brief, he has nobody but himself to blame.
ISSUE:
Whether or not petitioner is correct that he was
deprived of his right to due process when the CA
and the RTC failed to serve the copies of the
assailed resolutions and order
HELD:
No. The petition has no merit.
The contention of the petitioner that he was
deprived of his right to due process when the CA
dismissed his appeal because of his failure to
file his brief as appellant therein has no factual
and legal basis.
The records show that the counsel of the
petitioner in the trial court was the law firm of
Remollo & Associates with offices at Suite No.
23, Legaspi Suites, 178 Salcedo Street, Legaspi
Village, Makati City. Under Section 2, Rule 44
of the 1997 Rules of Civil Procedure, the
counsel of the parties in the court of origin shall
be considered as their counsel in the CA.
Section 2, Rule 13 of the Rules of Civil
Procedure provides that if any party has
appeared by counsel, service upon him shall be
made upon his counsel unless served upon the
party himself is ordered by the trial court. Notice
or service made upon a party who is
represented by counsel is a nullity. Notice to the
client and not to his counsel of record is not
notice in law. The rule admits of exceptions, as
when the court or tribunal orders service upon a
party or when the tribunal defendant is waived.
In the absence of a proper and adequate
notice to the court of a change of address, the
service of the order or resolution of a court upon
the parties must be made at the last address of
their counsel on record. It is the duty of the party
and his counsel to device a system for the
receipt of mail intended for them, just as it is the
duty of the counsel to inform the court officially
of a change in his address. It is also the
responsibility of a party to inform the court of the
change of his address so that in the event the
court orders that an order or resolution be
served on the said party to enable him to receive
the said resolution or order.
In the present case, the law firm of Remollo
& Associates, the petitioners counsel of record,
moved out from their office at the Legaspi Suites
to Dumaguete City without informing the court of
such fact. Based on its records, the CA believed
that the law office of the petitioners counsel was
still at the Legaspi Suites and sent copies of its
resolutions to the counsel of the petitioner at the
said address.
Neither did the petitioner inform the court of
his home or office address after his resignation
as Secretary of the Department of Tourism
where copies of the said order or resolution
could be sent. Notwithstanding his stature in the
business community, the CA cannot take judicial
notice of the petitioners home address or his
office address after his departure as Secretary
of the Department of Tourism or as Executive
Secretary of the President.
Indeed, the petitioner has nobody but
himself to blame. It was his responsibility to
check the status of his appeal in the CA from
time to time, from his counsel or from the
CA. He failed to do so. As Supreme Court held
in Bernardo v. Court of Appeals:
Litigants, represented by counsel, should not
expect that all they need to do is sit back, relax
and await the outcome of their case. They
should give the necessary assistance to their
counsel for what is at stake is their interest in the
case.
In his concurring opinion in Republic vs.
Sandiganbayan, Mr. Justice Teodoro R. Padilla
emphasized the value and significance of the
partys presence and diligence in the
advancement of his cause, thus:
xxx An almost lifetime of experience in litigation
is the best witness to the indispensability of
partys presence (aside from his lawyer, in case
he has the assistance of counsel) in order to
litigate with any reasonable opportunity of
success. xxx especially during the cross-
examination of adverse partys witnesses
where the truth must be determined every
counsel worth his salt must have the assistance
and presence of his client on the spot, for the
client invariably knows the facts far better than
his counsel. In short, even in civil cases, the
presence of party (as distinguished from his
lawyer alone) is essential to due process.
True enough, the party-litigant should not rely
totally on his counsel to litigate his case even if
the latter expressly assures that the formers
presence in court will no longer be needed. No
prudent party will leave the fate of his case
entirely to his lawyer. Absence in one or two
hearings may be negligible but want of inquiry or
update on the status of his case for several
months (four, in this case) is inexcusable. It is
the duty of a party-litigant to be in contact with
his counsel from time to time in order to be
informed of the progress of his case. Petitioner
simply claims that he was busy with his gravel
and sand and trading businesses which involved
frequent traveling from Manila to outlying
provinces. But this was not a justifiable excuse
for him to fail to ask about the developments in
his case or to ask somebody to make the query
for him. Petitioner failed to act with prudence
and diligence; hence, his plea that he was not
accorded the right to due process cannot elicit
this Courts approval or even sympathy.[17]
IN LIGHT OF ALL THE FOREGOING, the
petition is DENIED for lack of merit.
Mojar vs. Agro Commercial Security
G.R. No. 187188
Facts:
Petitioners were employed as security guards by
respondent and assigned to the various
branches of the Bank of Commerce in
Pangasinan, La Union and Ilocos Sur.
On May 2002, petitioners were relieved from
their respective posts and directed to report to
their new assignments in Metro Manila. They,
however, failed to report for duty in their new
assignments, prompting respondent to send
them a letter requiring a written explanation why
no disciplinary action should be taken against
them, but the letter was not heeded.
Thereafter, petitioners filed a Complaint for
illegal dismissal against respondent and the
Bank of Commerce, Dagupan Branch, before
the National Labor Relations Commission
(NLRC). The Labor Arbiter (LA) rendered a
Decision finding that petitioners were illegally
dismissed.
On appeal, the NLRC affirmed the LAs ruling
On 23 January 2008, respondent filed a Motion
for Extension to file a Petition for Certiorari
before the CA. The latter granted the Motion for
Extension. On 9 February 2008, respondent filed
its Petition for Certiorari before the appellate
court. On 30 June 2008, the CA issued a
Resolution noting that no comment on the
Petition had been filed, and stating that the case
was now deemed submitted for resolution.
On 21 July 2008, the CA rendered its Decision,
it found the Orders transferring petitioners to
Manila to be a valid exercise of management
prerogative.
On 1 August 2008, petitioner Mojar filed a
Manifestation before the CA, stating that he and
the other petitioners had not been served a copy
of the CA Petition. He also said that they were
not aware whether their counsel before the
NLRC, Atty. Jose C. Espinas, was served a
copy thereof, since the latter had already been
bedridden since December 2007 until his
demise on 25 February 2008. Neither could
their new counsel, Atty. Mario G. Aglipay, enter
his appearance before the CA, as petitioners
failed to get [the] folder from the office of Atty.
Espinas, as the folder can no longer be found.
Thereafter, petitioners filed a Motion to Annul
Proceedings. The denied the said motion.
Hence, this Petition.
Issue:
1. Whether or not the requirement that a
petition for certiorari must contain the
actual addresses of all the petitioners
and the respondents is mandatory.
2. Whether or not the affidavit of service is
mandatory with respect to motions.
3. Whether or not the petitioners were
negligent in the conduct of their
litigation.
Rulings:
1. Petitioners contend that the CA should not
have taken cognizance of the Petition before it,
as their actual addresses were not indicated
therein as required under Section 3, Rule 46 of
the Rules of Court, and pursuant to Cendaa v.
Avila. In the 2008 case Cendaa, this Court
ruled that the requirement that a petition for
certiorari must contain the actual addresses of
all the petitioners and the respondents is
mandatory. The failure to comply with that
requirement is a sufficient ground for the
dismissal of a petition.
This rule, however, is not absolute. In the 2011
case Santos v. Litton Mills
Incorporated, this Court ruled that where the
petitioner clearly mentioned that the parties may
be served with the courts notices or processes
through their respective counsels, whose
addresses have been clearly specified as in this
case, this act would constitute substantial
compliance with the requirements of Section 3,
Rule 46. The Court further observed that the
notice required by law is notice to counsel if the
party has already appeared by counsel,
pursuant to Section 2, Rule 13 of the Rules of
Court.
2. Section 3, Rule 46 provides that the petition
for certiorari should be filed together with the
proof of service thereof on the respondent.
Under Section 13, Rule 13 of the Rules of Court,
if service is made by registered mail, as in this
case, proof shall be made by an affidavit of the
person mailing and the registry receipt issued by
the mailing office. Section 3, Rule 46 further
provides that the failure to comply with any of
the requirements shall be sufficient ground for
the dismissal of the petition.
In Ferrer v. Villanueva,[18] petitioner therein
failed to append the proof of service to his
Petition for Certiorari. Holding that this failure
was a fatal defect, the Court stated:
There is no question that petitioner herein was
remiss in complying with the foregoing Rule. In
Cruz v. Court of Appeals, we ruled that with
respect to motions, proof of service is a
mandatory requirement. We find no cogent
reason why this dictum should not apply and
with more reason to a petition for certiorari, in
view of Section 3, Rule 46 which requires that
the petition shall be filed together with proof
of service thereof. We agree with the Court of
Appeals that the lack of proof of service is a fatal
defect. The utter disregard of the Rule cannot be
justified by harking to substantial justice and the
policy of liberal construction of the Rules.
Technical rules of procedure are not meant to
frustrate the ends of justice. Rather, they serve
to effect the proper and orderly disposition of
cases and thus effectively prevent the clogging
of court dockets. (Emphasis in the original)
Indeed, while an affidavit of service is required
merely as proof that service has been made on
the other party, it is nonetheless essential to due
process and the orderly administration of justice.
Atty. Espinas, petitioners counsel of record at
the time, was duly served a copy of the service.
Such service to Atty. Espinas, as petitioners
counsel of record, was valid despite the fact he
was already deceased at the time. 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 is specifically ordered by the court. It is
not the duty of the courts to inquire, during the
progress of a case, whether the law firm or
partnership representing one of the litigants
continues to exist lawfully, whether the partners
are still alive, or whether its associates are still
connected with the firm.[20]It is the duty of
party-litigants to be in contact with their counsel
from time to time in order to be informed of the
progress of their case. It is likewise the duty of
parties to inform the court of the fact of their
counsels death.[21] Their failure to do so means
that they have been negligent in the protection
of their cause.[22] They cannot pass the blame
to the court, which is not tasked to monitor the
changes in the circumstances of the parties and
their counsel.
3. Petitioners were negligent in the conduct of
their litigation. Having known that Atty. Espinas
was already bedridden as early as December
2007, they should have already obtained new
counsel who could adequately represent their
interests. The excuse that Atty. Aglipay could
not enter his appearance before the CA
because [petitioners] failed to get [their] folder
from the office of Atty. Espinas[24] is flimsy at
best.
The requirements for a valid substitution of
counsel have been jurisprudentially settled in
this wise:
Under Section 26, Rule 138 of the Rules of
Court and established jurisprudence, a valid
substitution of counsel has the following
requirements: (1) the filing of a written
application for substitution; (2) the client's written
consent; (3) the consent of the substituted
lawyer if such consent can be obtained; and, in
case such written consent cannot be procured,
(4) a proof of service of notice of such motion on
the attorney to be substituted in the manner
required by the Rules. Where death of the
previous attorney is the cause of substitution of
the counsel, a verified proof of the death of such
attorney (usually a death certificate) must
accompany the notice of appearance of the new
counsel.
The fact that petitioners were unable to obtain
their folder from Atty. Espinas is immaterial.
Proof of service upon the lawyer to be
substituted will suffice where the lawyers
consent cannot be obtained. With respect to the
records of the case, these may easily be
reconstituted by obtaining copies thereof from
the various courts involved.
Xxxxx ABERCA vs VERXXXXX
BERNARTE VS. PBA
The best evidence to prove that notice was sent
would be a certification from the postmaster,
who should certify not only that the notice was
issued or sent but also as to how, when and to
whom the delivery and receipt was made. The
mailman may also testify that the notice was
actually delivered.
FACTS:
Complainants (Jose Mel Bernarte and Renato
Guevarra) aver that they were invited to join the
PBA as referees. During the leadership of
Commissioner Emilio Bernardino, they were
made to sign contracts on a year-to-year basis.
During the term of Commissioner Eala, however,
changes were made on the terms of their
employment.Complainant Bernarte, for instance,
was not made to sign a contract during the first
conference of the All-Filipino Cup which was
from February 23, 2003 to June 2003. It was
only during the second conference when he was
made to sign a one and a half month contract for
the period July 1 to August 5, 2003.On January
15, 2004, Bernarte received a letter from the
Office of the Commissioner advising him that his
contract would not be renewed citing his
unsatisfactory performance on and off the court.
It was a total shock for Bernarte who was
awarded Referee of the year in 2003. He felt
that the dismissal was caused by his refusal to
fix a game upon order of Ernie De Leon.On the
other hand, complainant Guevarra alleges that
he was invited to join the PBA pool of referees in
February 2001. On March 1, 2001, he signed a
contract as trainee. Beginning 2002, he signed a
yearly contract as Regular Class C referee. On
May 6, 2003, respondent Martinez issued a
memorandum to Guevarra expressing
dissatisfaction over his questioning on the
assignment of referees officiating out-of-town
games. Beginning February 2004, he was no
longer made to sign a contract.
Respondents aver on the other
hand,Complainants were not illegally dismissed
because they were not employees of the PBA.
Their respective contracts of retainer were
simply not renewed. PBA had the prerogative of
whether or not to renew their contracts, which
they knew were fixed.
In her 31 March 2005 Decision, the Labor
Arbiter declared petitioner an employee whose
dismissal by respondents was illegal.
Accordingly, the Labor Arbiter ordered the
reinstatement of petitioner and the payment of
backwages, moral and exemplary damages and
attorneys fees.In its 28 January 2008 Decision,
the NLRC affirmed the Labor Arbiters
judgment.Respondents filed a petition for
certiorari with the Court of Appeals, which
overturned the decisions of the NLRC and Labor
Arbiter.The Court of Appeals found petitioner an
independent contractor since respondents did
not exercise any form of control over the means
and methods by which petitioner performed his
work as a basketball referee..
ISSUE: Whether the Labor Arbiters decision
has become final and executory for failure of
respondents to appeal with the NLRC within the
reglementary period?
RULING:
Petitioner contends that the Labor Arbiters
Decision of 31 March 2005 became final and
executory for failure of respondents to appeal
with the NLRC within the prescribed period.
Petitioner claims that the Labor Arbiters
decision was constructively served on
respondents as early as August 2005 while
respondents appealed the Arbiters decision only
on 31 March 2006, way beyond the
reglementary period to appeal. Petitioner points
out that service of an unclaimed registered mail
is deemed complete five days from the date of
first notice of the post master. In this case three
notices were issued by the post office, the last
being on 1 August 2005. The unclaimed
registered mail was consequently returned to
sender. Petitioner presents the Postmasters
Certification to prove constructive service of the
Labor Arbiters decision on respondents. The
Postmaster certified:That upon receipt of said
registered mail matter, our registry in charge,
Vicente Asis, Jr., immediately issued the first
registry notice to claim on July 12, 2005 by the
addressee. The second and third notices were
issued on July 21 and August 1, 2005,
respectively.That the subject registered letter
was returned to the sender (RTS) because the
addressee failed to claim it after our one month
retention period elapsed. Said registered letter
was dispatched from this office to Manila CPO
(RTS) under bill #6, line 7, page1, column 1, on
September 8, 2005.
Section 10, Rule 13 of the Rules of Court
provides:
SEC. 10. Completeness of service. Personal
service is complete upon actual delivery. Service
by ordinary mail is complete upon the expiration
of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee,
or after five (5) days from the date he received
the first notice of the postmaster, whichever date
is earlier.
The rule on service by registered mail
contemplates two situations: (1) actual service
the completeness of which is determined upon
receipt by the addressee of the registered mail;
and (2) constructive service the completeness of
which is determined upon expiration of five days
from the date the addressee received the first
notice of the postmaster.
Insofar as constructive service is concerned,
there must be conclusive proof that a first notice
was duly sent by the postmaster to the
addressee.Not only is it required that notice of
the registered mail be issued but that it should
also be delivered to and received by the
addressee.Notably, the presumption that official
duty has been regularly performed is not
applicable in this situation. It is incumbent upon
a party who relies on constructive service to
prove that the notice was sent to, and received
by, the addressee.
The best evidence to prove that notice was sent
would be a certification from the postmaster,
who should certify not only that the notice was
issued or sent but also as to how, when and to
whom the delivery and receipt was made. The
mailman may also testify that the notice was
actually delivered.
In this case, petitioner failed to present any
concrete proof as to how, when and to whom the
delivery and receipt of the three notices issued
by the post office was made. There is no
conclusive evidence showing that the post office
notices were actually received by respondents,
negating petitioners claim of constructive
service of the Labor Arbiters decision on
respondents. The Postmasters Certification
does not sufficiently prove that the three notices
were delivered to and received by respondents;
it only indicates that the post office issued the
three notices. Simply put, the issuance of the
notices by the post office is not equivalent to
delivery to and receipt by the addressee of the
registered mail. Thus, there is no proof of
completed constructive service of the Labor
Arbiters decision on respondents.
SOLAR TEAM ENTERTAINMENT, INC.
vs.
HON. HELEN BAUTISTA RICAFORT, TEAM
IMAGE ENTERTAINMENT, INC.,
FELIX S. CO, JEFFREY C. CAL, and
KING CUISIA.
FACTS:
Petitioner, as plaintiff, filed before the RTC
complaint for recovery of possession and
damages with prayer for a writ of
replevin against herein private
respondents. The case presided over by public
respondent Judge Bautista-Ricafort.
Summonses and copies of the complaint were
forthwith served on private respondents. On 25
July 1997, their counsel filed a notice of
appearance with urgent ex-parte motion for
extension of time to plead, which the court
granted.
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.
Private respondents filed their opposition to
the above mentioned motion. Public respondent
Judge Bautista-Ricafort issued an order
declaring private respondents in default.
Petitioner immediately moved for
reconsideration but was denied.
Petitioner thus filed the instant special civil
action of certiorari, contending that public
respondent Judge Bautista-Ricafort committed
grave abuse of discretion amounting to lack or
excess of jurisdiction in that: (a) the "Answer
(with Counterclaims)" was not served personally
upon petitioners counsel despite the undisputed
fact that the offices of private respondents
counsel and that of petitioners counsel are only
about 200 meters away from each other; and (b)
the Answer did not contain any explanation as to
why the answer was not served personally.
In their Comment, filed in compliance with
the resolution and to which petitioner filed a
Reply, private respondents aver that public
respondent Judge Bautista-Ricafort correctly
admitted private respondents Answer (with
Counterclaims) in light of Section 6, Rule 1 of
the 1997 Rules of Civil Procedure; that Section
11 of Rule 13 begins with the phrase whenever
practicable, thereby suggesting that service by
mail may still be effected depending on the
relative priority of the pleading sought to be filed;
and when service is not done personally, it is
more prudent and judicious for the courts to
require a written explanation rather than to
expunge the pleading outright or consider the
same as not being filed.
ISSUE:
1. Whether or not respondent judge
committed grave abuse of discretion
amounting to lack or excess of
jurisdiction in denying petitioners motion
to expunge private respondents answer
with counterclaims on the ground that
said pleading was not served
personally.
SC RULING:
NO.
Pursuant to 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. The
section reads:
SEC. 11. Priorities in modes of service
and filing. -- Whenever practicable, the
service and filing of pleadings and other
papers shall be done personally. Except
with respect to papers emanating from
the court, a resort to other modes must
be accompanied by a written explanation
why the service or filing was not done
personally. A violation of this Rule may
be cause to consider the paper as not
filed.(n)
Note that Section 11 refers to
both service of pleadings and other
papers on the adverse party or his
counsel as provided for in Sections 6, 7
and 8; and to the filing of pleadings and
other papers in court.
Personal service and filing are preferred for
obvious reasons. Plainly, such should expedite
action or resolution on a pleading, motion or
other paper; and conversely, minimize, if not
eliminate, delays likely to be incurred if service
or filing is done by mail, considering the
inefficiency of the postal service. Likewise,
personal service will do away with the practice of
some lawyers who, wanting to appear clever,
resort to the following less than ethical practices:
(1) serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for
instance, responsive pleadings or an
opposition; or (2) upon receiving notice from the
post office that the registered parcel containing
the pleading of or other paper from the adverse
party may be claimed, unduly procrastinating
before claiming the parcel, or, worse, not
claiming it at all, thereby causing undue delay in
the disposition of such pleading or other papers.
If only to underscore the mandatory nature
of this innovation to our set of adjective rules
requiring personal service whenever practicable,
Section 11 of Rule 13 then gives the court the
discretion to consider a pleading or paper as not
filed if the other modes of service or filing were
resorted to and no written explanation was made
as to why personal service was not done in the
first place. The exercise of discretion must,
necessarily, consider the practicability of
personal service, for Section 11 itself begins
with the clause whenever practicable.
 We thus take this opportunity to clarify that
under Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, 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.
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,
the trial court opted to exercise its discretion in
favor of admitting the Answer (with
Counterclaims), instead of expunging it from the
record.
WHEREFORE, the instant petition is
DISMISSED considering that while the
justification for the denial of the motion to
expunge the Answer (with Counterclaims) may
not necessarily be correct, yet, for the reasons
above stated, the violation of Section 11 of Rule
13 may be condoned. SO ORDERED.
Lim v. NPC
G.R. No. 178789, November 14, 2012
FACTS:
National Power Corporation (NPC) filed
an expropriation suit against petitioner
Lim for its Coal-Fired Thermal Power
Project. Since Lim was residing in the
United States, the court caused the
service of summons through her tenant,
a certain Wilfredo Tabongbong.
Upon notice to Lim and the deposit of
the provisional value of the property, the
RTC ordered the issued writ of
possession in NPCs favor that would
enable it to cause the removal of Lim
from the land.
However, Lim, represented by her
husband Delfin, filed an omnibus motion
to dismiss the action and to suspend the
writ of possession, questioning the
RTCs jurisdiction over Lims person and
the nature of the action. She also
assailed the failure of the complaint to
state a cause of action. The RTC denied
the motions.
Private respondents Arcinue spouses
filed a motion for leave to admit their
complaint-in-intervention, alleging that
they owned and were in possession of
one of the lots subject of the
expropriation.
The RTC granted the Arcinues motion
and required both NPC and Lim to
answer the complaint-in-intervention
within 10 days from receipt of its order.
Because NPC and Lim failed to file
their respective answers, the
Arcinues filed a motion for judgment
by default.
Lim then sought to expunge the
motion for lack of the requisite
explanation why the Arcinues
resorted to service by registered mail
rather than personal service.
Both the RTC and the CA ruled against
this, prompting her to file a petition with
the Court.
ISSUE:
WON the CA gravely abused its discretion in
affirming the order of default that the RTC
entered against Lim.
HELD:
Lim points out that the RTC
should have ordered the
Arcinues motion for judgment
by default expunged from the
records since it lacked the
requisite explanation as to why
they resorted to service by
registered mail in place of
personal service.
There is no question that the
Arcinues motion failed to
comply with the requirement of
Section 11, Rule 13 of the 1997
Rules of Civil Procedure which
provides:
SECTION 11. Priorities
in modes of service and
filing. Whenever
practicable, the service
and filing of pleadings
and other papers shall
be done personally.
Except with respect to
papers emanating from
the court, a resort to
other modes must be
accompanied by a
written explanation, why
the service or filing was
not done personally. A
violation of this Rule
may be cause to
consider the paper as
not filed.
The Rules of Civil Procedure do not provide for
automatic sanction should a party fail to submit
the required explanation for resorting to service
by registered mail rather than personal service.
The Court pointed out Rule 13, Section 11 of
the 1997 Rules of Civil Procedure does not
provide for automatic sanction should a party fail
to submit the required explanation. It merely
provides for that possibility considering its use of
the term may.
Moreover, the Court finds no such grave abuse
of discretion here. As the RTC pointed out,
notwithstanding that the Arcinues' failed to
explain their resort to service by registered mail
rather than by personal service, the fact is that
Lim's counsel expressly admitted having
received a copy of the Arcinues' motion for
judgment by default on December 7, 1998 or I0
days before its scheduled hearing. This means
that the Arcinues were diligent enough to file
their motion by registered mail long before the
scheduled hearing.
Personal service is required precisely because it
often happens that hearings do not push through
because, while a copy of the motion may have
been served by registered mail before the date
of the hearing, such is received by the adverse
party already after the hearing. Thus, the rules
prefer personal service. But it does not
altogether prohibit service by registered mail
when such service, when adopted, ensures as in
this case receipt by the adverse party.
Sps. De La Cruz vs. Ramsical
Facts: Respondent RAMISCAL is the
registered owner of a parcel of land in Quezon
City. Petitioners Sps. DE LA CRUZ are
occupants of a parcel of land, located at the
back of Ramiscal's property, and covered by
TCT in the name of Concepcion de la Pea,
mother of petitioner Alfredo de la Cruz. The
subject matter of this case is a 1.10-meter wide
by 12.60-meter long strip of land owned by
respondent which is being used by petitioners as
their pathway. Petitioners had enclosed the
same with a gate, fence, and roof.
When the respondent leased her property, she
discovered that the aforementioned pathway
being occupied by petitioners is part of her
property.
Through her lawyer, respondent immediately
demanded that petitioners demolish the
structure constructed by them on said pathway
without her knowledge and consent.
Respondent filed this complaint with the RTC,
seeking the demolition of the structure
allegedly illegally constructed by petitioners
on her property. Respondent asserted in her
complaint that petitioners have an existing right
of way to a public highway other than the current
one they are using, which she owns. She prayed
for the payment of damages.
The RTC handed down a Decision giving
probative weight to the evidence adduced by
respondent.
The CA dismissed the appeal filed by petitioners
from the RTC decision for failure to file brief
within the reglementary period. The motion for
reconsideration filed was also denied.
Issue: Whether or not the Court Appeals erred
in dismissing the appeal filed by petitioners for
failure to file appellants' brief on time.
Ruling:
Petitioner assert positively that the petition was
filed on time on 30 April 1998, which is well
within the 45-day period reckoned from 17
March 1998, when the secretary of their former
counsel received the notice to file appeal.
Petitioners' arguments fail to persuade us.
Press earnestly as they would, the evidence on
record, nevertheless, evinces contrariety to
petitioners' assertion that they have beat the 45-
day period to file appellants' brief before the
appellate court. It is clear from the registry
return receipt card that the Notice to File Brief
was received on 12 March 1998 by one May
Tadeo from the Office of Atty. Judito Angelo C.
Tadeo, petitioners' previous counsel. Thus, on
30 April 1998, when their new counsel entered
his appearance and at the same time filed an
appellants' brief, the 45 days have run out. For
failure of petitioners to file brief within the
reglementary period, the Court of Appeals
correctly dismissed said appeal pursuant to
Section 1(b), Rule 50 of the 1997 Rules of Civil
Procedure.
Neither can the members of this Court lend
credence to petitioners' contention that the
written note of Atty. Tadeo's office on the face of
the Order reads that the said office received it
on 17 March 1998. It is a rule generally
accepted that when the service is to be made
by registered mail, the service is deemed
complete and effective upon actual receipt
by the addressee as shown by the registry
return card. Thus, between the registry return
card and said written note, the former
commands more weight. Not only is the former
considered as the official record of the court, but
also as such, it is presumed to be accurate
unless proven otherwise, unlike a written note or
record of a party, which is often self-serving and
easily fabricated. Further, this error on the part
of the secretary of the petitioners' former
counsel amounts to negligence or incompetence
in record-keeping, which is not an excuse for the
delay of filing.
Petitioners' justification that their former counsel
belatedly transmitted said order to them only on
20 March 1998 is not a good reason for
departing from the established rule. It was the
responsibility of petitioners and their counsel to
devise a system for the receipt of mail intended
for them. Rules on procedure cannot be made to
depend on the singular convenience of a party.
Petitioners next take the stand that even
assuming the brief was filed late, the Court of
Appeals still erred in dismissing their petition in
light of the rulings of this Court allowing delayed
appeals on equitable grounds. Indeed, in certain
special cases and for compelling causes, the
Court has disregarded similar technical flaws so
as to correct an obvious injustice made. In this
case, petitioners, however, failed to demonstrate
any justifiable reasons or meritorious grounds
for a liberal application of the rules. We must
remind petitioners that the right to appeal is not
a constitutional, natural or inherent right it is a
statutory privilege and of statutory origin and,
therefore, available only if granted or provided
by statute. Thus, it may be exercised only in the
manner prescribed by, and in accordance with,
the provisions of the law.
Petition is denied.
Po v. DOJ, G.R. No. 195198, February 11,
2013
Facts:
Herein private respondent, Jasper T. Tan (Tan),
is a stockholder of Coastal Highpoint Ventures,
Inc. (CHVI), a real estate development
company. Antonio Ng Chiu(Chiu) is its
President. Tan claimed that Loreli Lim Po (Po) is
Chius personal accountant. Po asserted
otherwise and instead alleged that she is merely
a consultant for CHVI.
Tan lamented that pertinent information relative
to CHVIs operations were withheld from him.
His repeated requests for copies of financial
statements and allowance to inspect corporate
books proved futile. Consequently, he filed
before the Office of the City Prosecutor of Cebu
a complaint against Chiu and Po for violation of
Section 74(2), in relation to Section 144of the
Corporation Code of the Philippines, the origin of
the two consolidated petitions now before us.
On October 16, 2008, Assistant City Prosecutor
Anna Lou B. Fernandez-Cavada (Prosecutor
Fernandez-Cavada) issued a Resolution finding
probable cause to indict Chiu and Po.
On April 30, 2009, Prosecutor Fernandez-
Cavada issued a Resolution denying Chiu and
Pos motions to reconsider the foregoing. A
petition for review was filed before the
Department of Justice (DOJ). On March 2, 2010,
then Undersecretary Ricardo R. Blancaflor
issued a resolution reversing Prosecutor
Fernandez-Cavadas findings.
On April 30, 2010, then Acting DOJ Secretary
Alberto C. Agra (Secretary Agra) issued a
Resolution granting Tans motion for
reconsideration. Secretary Agra reversed the
Resolution dated March 2,
2010 and instead affirmed Prosecutor
Fernandez-Cavadas earlierdisquisition. Chiu
and Pos motions for reconsideration were
denied by Secretary Agra through a
Resolutiondated June 21, 2010.
Chiu and Po each filed before the Court of
Appeals (CA) a Petition for Certiorari under Rule
65 of the Rules of Court. Po and Chius petitions
were docketed as CA-G.R. SP Nos. 05351 and
05352, respectively.
On December 15, 2010, the CA dismissed with
finality Pos petitionon technical grounds, viz:
While petitioner had complied with the
requirement on competent evidence of her
identity, she still failed to comply with the
requirement on proper proof of service. Proper
proof of personal service requires that the
affidavit of the party serving must contain a full
statement of the date, place and manner of
service. Petitioners attached affidavit of service
lacked these pertinent details. As for the proof of
service by registered mail, post office receipts
do not suffice for it is stated, specifically in
Section 10, Rule 13 of the Rules of Court, that
service by registered mail is complete upon
actual receipt by the addressee, or after five (5)
days from the date he received the first notice of
the postmaster, whichever is earlier. Verily,
registry receipts cannot be considered as
sufficient proof of service; they are merely
evidence of the mail matter with the post office
of the sender, not the delivery of said mail
matter by the post office to the addressee.
Issue:
Whether or not the Court of Appeals erred in
dismissing the petition based on technical
grounds?
Ruling:
In the negative. The Honorable Supreme Court
held that: Even if we were to declare that it was
error to dismiss Po's petition on the ground that
the registry return cards were not attached
thereto, still, remanding the case to the CA
would only prove circuitous. The crux of Po's
petition filed with the CA was to seek for a
review of Secretary Agra's findings. The CA had
already done so in resolving Chiu's petition on
the merits and no ground exists for us to once
again review the same.
XXXXX PNB vs CIR supra XXXXX
ISABELITA CUNANAN vs JUMPING JAP
x---------------------------------------------------------------
-------------x
FACTS:
 Petitioner Carmencita Fradejas Nemoto
(Carmencita) is the registered owner of a 618
square meter-lot, with the house
improvements thereon, located at No. 167 Pili
Drive, Ayala Alabang Village, Muntinlupa City
and covered by Transfer Certificate of Title
(TCT) No. 213246[4]. She acquired the property
by virtue of a deed of sale executed in her favor
by Metropolitan Land Corporation (MLC).
Despite several demands and assurances in a
span of more than three years, the spouses
and Nemoto still failed to pay the purchase price
advanced by respondent and Protacio
amounting to P23,400,000.00.
On 19 April 2001, respondent caused the
annotation of a notice of lis pendens involving
Civil Case No. 01-098 on TCT No. 213246.

On 22 March 2001, respondent Jumping Despite the notice of lis pendens, Carmencita
Jap Trading Corporation (respondent), executed a deed of real estate
represented by its President, Rueben mortgage[6] dated 20 July 2001 over the property
Protacio (Protacio), filed Civil Case No. 01- in favor of petitioners Isabelita and Carolyn
098 with the Regional Trial Court (RTC) Cunanan (the Cunanans) as security for the
of Muntinlupa City seeking the annulment of payment of a P10 million loan plus interest, as
both the deed of sale and TCT No. 213246, as well as all subsequent loans and obligations.
well as the reconveyance of the property.
In an Order dated 18 July 2001, the RTC
Respondent anchored the complaint on its dismissed the case and ordered the cancellation
alleged superior right over the property by virtue of the notice of lis pendens.[8]
of the execution of a previous deed of
conditional sale by MLC in its favor and its Subsequently, 23 July 2001, the RTC issued
having paid P18,300,000.00 by itself using an amended order[9] specifically
corporate funds and P5,000,000.00 by Protacio, ordering the Register of Deeds of Muntinlupa
or a total of P23,300,000.00 which was more City to immediately
than the P12,600,000.00 that the spouses cancel the notice of lis pendens on TCT No
Nemoto had paid on the purchase price . 213246.[10] Within the same day, the Register
of P35,900,000.00. of Deeds cancelled the notice of lis
pendens and, immediately thereafter, annotated
Respondent later discovered that a deed of the deed of real estate mortgage.[11]
absolute sale was executed between MLC and
Carmencita with a stated consideration The RTC subsequently granted
of P12,500,000.00 respondents motion for reconsideration of the
and that TCT No. 213246 was issued in the amended order of dismissal in its order dated 24
name of Carmencita.[5] October 2001.[12]
 authorized to demand and collect the
Thereafter, the Register of Deeds of Muntinlupa corporations claims over the Ayala Alabang
City re-annotated the notice of lis pendens on 12 property and the institution of actions in court.[20]
December 2001.[13] The authority granted to Protacio is
broad enough to enable him to take any legal
On 16 April 2004, the RTC rendered its action necessary to protect respondents interest
decision[18] in favor of respondent. It found that in the disputed property.
the execution of the real estate mortgage was A notice of lis pendens[22] is an
done in bad faith for Civil Case No. 01-098 was announcement to the whole world that a
still pending as the dismissal thereof was not yet particular real property is in litigation, serving as
final and executory and the notice of lis a warning that one who acquires an interest over
pendens was not yet cancelled by the Register said property does so at his own risk, or that he
of Deeds. gambles on the result of the litigation over the
In fact, a timely motion for said property.[23]
reconsideration of the order dismissing the
complaint and canceling the notice of lis The filing of a notice of lis pendens charges all
pendens was filed and granted. strangers with a notice of the particular litigation
referred to therein and, therefore, any right they
On appeal, the Court of Appeals may thereafter acquire on the property is subject
affirmed the decision of the trial court per its to the eventuality of the suit.[24] Such
decision[19] of 7 April 2006. It found that the announcement is founded upon public policy
notice of lis pendens was subsisting at the time and necessity, the purpose of which is to keep
the contract of real estate the properties in litigation within the power of the
mortgage was executed between the court until the litigation is terminated and to
Cunanans and Carmencita. prevent the defeat of the judgment or decree by
subsequent alienation.[25]
ISSUE: The sole remaining
issue is whether or not the Cunanans are Under Section 77 of Presidential Decree
bound by the notice of lis pendens which (P.D.) No. 1529,[26] a notice of lis pendens shall
was ordered cancelled by the RTC be deemed cancelled only upon the registration
of a certificate of the clerk of court in which the
Prefatorily, the Court agrees with the action or proceeding was pending stating the
appellate court in affirming the trial court ruling manner of disposal thereof if there was a final
that Protacio is authorized to institute the judgment in favor of the defendant or the action
complaint against the petitioners. was disposed of terminating finally all rights of
The certification issued by the majority the plaintiff over the property in litigation.
of the directors clearly indicates that he is
 Given the antecedent facts in the
present case, the Court should deny the
petition.
There is no question that the Register of
Deeds cancelled the notice of lis
pendens annotated on TCT No. 213246 only on
23 July 2001 while the Cunanans and
Carmencita executed the deed of real estate
mortgage three days before, or on 20 July 2001.
The Cunanans are bound by the notice
of lis pendens because on the date they
executed the mortgage deed with Carmencita
the annotation was still subsisting and had not
yet been cancelled. The Order dated 18 July
2001 dismissing the complaint and directing the
cancellation of the notice of lis pendens did not
improve the situations of the Cunanans simply
because said Order was not registered at all and
therefore did not preclude the notice of lis
pendens from continuing in effect.
Neither did the issuance and registration
of the amended Order dated 23 July 2001,
although it even commanded the Register of
Deeds to cancel the notice of lis pendensapart
from containing the same directives as those in
the 18 July 2001 Order. The simple reason this
time is the fact that the last order was issued
after the execution of the mortgage deed. As the
mortgage had already been executed and
therefore deemed valid and effective between
the parties as of the date of its execution, the
Cunanans had taken a gamble on the result of
the litigation referred to in the notice of lis
pendens when they accepted the properties as
security.
The result in the present case would still
be the same even if the parties executed the
mortgage deed after the Register of Deeds had
cancelled the notice of lis pendens. It is true that
one who deals with property registered under
the Torrens system need not go beyond the
same, but only has to rely on the face of the
title. He is charged with notice only of such
burdens and claims as are annotated on the
title. However, this principle does not apply
when the party has actual knowledge of facts
and circumstances that would impel a
reasonably cautious man to make such inquiry
or when the purchaser or mortgagee has
knowledge of a defect or the lack of title in his
vendor or mortgagor or of sufficient facts to
induce a reasonably prudent man to inquire into
the status of the title of the property in litigation.
One who falls within the exception can
neither be denominated an innocent purchaser
or mortgagee for value nor a purchaser or
mortgagee in good faith.[27]
In the present case, the mortgage deed
was executed even before the Register of
Deeds had the chance to cancel the annotated
notice of lis pendens on the title of the disputed
property. Moreover, the RTCs orders had not
even attained finality when the mortgage deed
was executed. The respondent in fact filed on 2
August 2001 a motion for reconsideration of the
trial courts order and sought the reinstatement
of the cancelled notice of lis pendens. On 24
October 2001, the trial court reconsidered its
previous ruling and ordered the reinstatement of
the notice of lis pendens.

VASHDEO GAGOOMAL, PETITIONER,
VS.
SPOUSES RAMON AND NATIVIDAD
VILLACORTA, RESPONDENTS.
FACTS OF THE CASE: Albert Zearosa
(Zearosa) a registered owner of a parcel of
land mortgaged the same in favor of BPI which
was duly annotated on the title. Subsequently,
Zearosa obtained a loan from RAM Holdings
Corporation (RAM), secured by a second
mortgage over the property and a Promissory
Note. The parties likewise executed a
Memorandum of Agreement (MOA) whereby
Zearosa, through an Irrevocable Special Power
of Attorney, authorized RAM, among others, to
sell the subject property in case of his failure to
pay.
Zearosa failed to settle his obligations
prompting RAM to file a Complaint for collection
of sum of money with damages against him and
BPI. RAM also caused the annotation of a
notice of lis pendens on the title.
Pending Civil Case No. 67381, Zearosa failed
to pay his obligation to BPI resulting in the
foreclosure of the subject property. The
certificate of sale was annotated on the title.
Meanwhile, RAM sold its rights and interests
over the subject property to New Summit
International, Inc., represented by its President,
Vashdeo Gagoomal, herein petitioner. The
assignment was annotated on the title.
On August 29, 2002, one Luis P. Lorenzo, Jr.
(Lorenzo) filed a complaint for recovery of sum
of money with application for a writ of
preliminary attachment against Zearosa before
the RTC docketed as Civil Case No. 02-1038. A
writ of preliminary attachment was issued on
September 20, 2002, pursuant to which the
Branch Sheriff attached the subject property.
The lien was annotated on TCT No. 170213
on September 30, 2002.
On the other hand, Zearosa redeemed the
foreclosed property from BPI and thereafter, he
sold the property to a certain Patricia A. Tan
(Tan) in whose favor TCT No. 10206 was issued
on April 4, 2003. The annotations of the notice
of lis pendens in Civil Case No. 67381, as
well as the notice of levy on attachment
in Civil Case No. 02-1038, were carried over
to her title.
In the meantime, in Civil Case No. 02-1038,
Lorenzo obtained a favorable decision which
had become final and executory. A notice of levy
and execution on the subject attached property
was issued and annotated on the title and
subsequently the property was sold at public
auction to
Lorenzo and the Certificate of Sale was
annotated on TCT No. 10206 on January 30,
2004, giving Zearosa until January 29, 2005
within which to redeem the property.
Subsequently, the RTC rendered judgment in
favor of RAM in Civil Case No. 67381 for sum of
money. Pending Zearosa's appeal to the CA,
docketed as CA-G.R. CV No. 84523, RAM filed
a motion for execution pending appeal, which
was granted. The property subject of notice of lis
pendens was sold at public auction to petitioner,
the successor-in-interest of RAM. The certificate
of sale was annotated on Tan's TCT No. 10206.
On January 29, 2005, in view of Zearosa's
failure to redeem the property from Lorenzo, the
title over the subject property was consolidated
in the latter's name. A writ of possession was
issued in favor of Lorenzo, who subsequently
sold the property to Natividad Villacorta, one of
the respondents herein. Immediately after
purchasing the property, respondents took
possession thereof.
Meanwhile, Zearosa's appeal in CA-G.R. CV
No. 84523 was dismissed, and the decision in
favor of RAM became final and executory.. With
a sale annotated in its favor, and without
Zearosa exercising his right of redemption, a
final Deed of Sale was issued in favor of
petitioner, the successor-in-interest of RAM, on
December 14, 2005. By virtue of a writ of
possession issued by the RTC Civil Case No.
67381, petitioner divested the respondents of
possession of the disputed property.
The foregoing developments prompted the
respondents to file a Motion to Quash Writ of
Possession in Civil Case No. 67381 and they
also filed a case for quieting of title and recovery
of possession before the RTC docketed as Civil
Case No. 08-011.
RTCs Decision -- denied respondents' Motion
to Quash Writ of Possession and directed the
Registry of Deeds to issue a new transfer
certificate of title in the name of petitioner
Vashdeo Gagoomal. The motion for
reconsideration thereof was similarly denied.
Aggrieved, the respondents filed an appeal
CAS DecisionCA granted respondents'
petition.
ISSUE: Whether or not the annotation of RAM of
the lis pendens is proper.
SUPREME COURT DECISION: In the present
case, the annotation of Ram of the lis
pendens was improper.
Spouses Villacorta derived their rights in the
subject property from their predecessor-in-
interest, Lorenzo, who purchased the same in a
sale on execution. The title to the subject
property was consolidated in favor of Lorenzo
and said annotation was reflected on the
certificate of title. Gagoomal, on his part,
maintains that he has a superior right over
Lorenzo because his predecessor-in-interest,
Ram, was able to cause the annotation of lis
pendens ahead of Lorenzo's writ of attachment.
The fact that the notice of lis
pendens regarding to Civil Case No. 67381
was annotated ahead of the attachment of
the subject property in Civil Case No. 02-
1038 is of no moment. Hence, We agree with
spouses Villacorta that Gagoomal did not
acquire any title to the property since what he
purchased during the public auction on October
14, 2004 was only the remaining right of
redemption of Zearosa.
Petitioner's argument that he acquired a superior
right over the subject property by virtue of the
earlier annotation of a notice of lis pendens on
June 11, 1999 by his predecessor-in-interest
RAM on the same title cannot be given
credence.
Section 14, Rule 13 of the Rules of Court
provides:
Sec. 14. Notice of lis pendens.
- In an action affecting the title
or the right of possession of
real property, the plaintiff and
the defendant, when affirmative
relief is claimed in his answer,
may record in the office of the
registry of deeds of the province
in which the property is situated
a notice of the pendency of the
action. Said notice shall contain
the names of the parties and the
object of the action or defense,
and a description of the property
in that province affected
thereby. Only from the time of
filing such notice for record shall
a purchaser, or encumbrancer
of the property affected thereby,
be deemed to have constructive
notice of the pendency of the
action, and only of its pendency
against the parties designated
by their real names.
The notice of lis pendens hereinabove
mentioned may be cancelled only upon order of
the court, after proper showing that the notice is
for the purpose of molesting the adverse party,
or that it is not necessary to protect the rights of
the party who caused it to be recorded.
[emphasis ours]
The filing of a notice of lis pendens has a
dual effect:
(1) to keep the property subject matter
of the litigation within the power of the
court until the entry of the final judgment
in order to prevent the defeat of the final
judgment by successive alienations; and
(2) to bind a purchaser, bona fide or
otherwise, of the property subject of the
litigation to the judgment that the court
will subsequently promulgate.
Relative thereto, a notice of lis pendens is
proper in the following actions and their
concomitant proceedings:
(a) an action to recover possession of real
estate;
(b) an action to quiet title thereto;
(c) an action to remove clouds thereon;
(d) an action for partition; and
(e) any other proceedings of any kind in Court
directly affecting the title to the land or the use or
occupation thereof or the buildings thereon.
Thus, a notice of lis pendens is only valid and
effective when it affects title over or right of
possession of a real property.
In this case, it cannot be denied that Civil Case
No. 67381, which RAM, predecessor-in-interest
of petitioner, instituted against Zearosa was for
collection of sum of money with damages
a purely personal action. Hence, the notice of lis
pendens in favor of RAM annotated on the
cancelled TCT No. 170213 and carried over to
Tan's TCT No. 10206 conferred upon it no rights
over the subject property and, as a necessary
consequence, upon petitioner, its successor-in-
interest.

In the present case, the annotation of Ram of

the lis pendens was improper because the
case filed by Ram against Zearosa was purely
a personal action. Civil Case No. 67381,
entitled Ram Holdings Corporation vs. Albert
Zearosa, et. al., is for Collection of Sum of
Money with Damages.

It has been held that the doctrine of lis

pendens has no application to a proceeding
in which the only object sought is the
recovery of a money judgment, though the
title or right of possession to property may
be affected. It is essential that the property
be directly affected, as where the relief
sought in the action or suit includes the
recovery of possession, or the enforcement
of a lien, or an adjudication between
conflicting claims of title, possession, or
right of possession to specific property, or
requiring its transfer or sale.