RULE 14 - Summons

1. VALMONTE vs. CA, G.R. No. 108538 January 22, 1996

FACTS:
Petitioner Lourdes A. Valmonte is a foreign resident. Petitioners Lourdes and Alfredo
are husband and wife both residents of 90222 Carkeek Drive South Seattle,
Washington, U.S.A. Petitioner Alfredo D. Valmonte, who is a member of the Philippine
bar, however, practices his profession in the Philippines, commuting for this purpose
between his residence in the state of Washington and Manila, where he holds office
at S-304 Gedisco Centre, 1564 A. Mabini, Ermita, Manila.
Private respondent Rosita Dimalanta, who is the sister of petitioner, filed an action for
partition against former and her husband. She alleged that, the plaintiff is of legal age,
a widow and is at present a resident of 14823 Conway Road, Chesterfield, Missouri,
U.S.A., while the defendants are spouses but, for purposes of this complaint may be
served with summons at Gedisco Center, Unit 304, 1564 A. Mabini St., Ermita, Manila
where defendant Alfredo D. Valmonte as defendant Lourdes Arreola Valmontes
spouse holds office and where he can be found. He husband was also her counsel,
who has a law office in the Philippines. The summons was served on her husband.
Petitioner in a letter referred private respondents counsel to her husband as the party
to whom all communications intended for her should be sent. Service of summons
was then made upon petitioner Alfredo at his office in Manila. Alfredo D. Valmonte
accepted his summons, but not the one for Lourdes, on the ground that he was not
authorized to accept the process on her behalf. Accordingly the process server left
without leaving a copy of the summons and complaint for petitioner Lourdes A.
Valmonte.
Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim.
Petitioner Lourdes A. Valmonte, however, did not file her Answer. For this reason
private respondent moved to declare her in default. Petitioner Alfredo D. Valmonte
entered a special appearance in behalf of his wife and opposed the private
respondents motion. RTC denied the MR of respondents. CA declared petitioner
Lourdes in default. Said decision was received by Alfredo hence this petition.

ISSUE: The petitioner, Lourdes A. Valmonte, was served a summon through her
husband and counsel Alfredo D. Valmonte and whether such summon was validly
served to Mrs. Valmonte is the issue in this petition.
DECISION: There was no valid service of summons on Lourdes. The action herein is
in the nature of an action quasi in rem. Such an action is essentially for the purpose of
affecting the defendants interest in a specific property and not to render a judgment
against him. As petitioner Lourdes A. Valmonte is a nonresident who is not found in
the Philippines, service of summons on her must be in accordance with Rule 14, 17.
Such service, to be effective outside the Philippines, must be made either (1) by
personal service; (2) by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case a copy of the

summons and order of the court should be sent by registered mail to the last known
address of the defendant; or (3) in any other manner which the court may deem
sufficient.
In the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was
not done by means of any of the first two modes. This mode of service, like the first
two, must be made outside the Philippines, such as through the Philippine Embassy
in the foreign country where the defendant resides. The service of summons on
petitioner Alfredo D. Valmonte was not made upon the order of the court as required
by Rule 14, 17 and certainly was not a mode deemed sufficient by the court which
in fact refused to consider the service to be valid and on that basis declare petitioner
Lourdes A. Valmonte in default for her failure to file an answer.
Secondly, the service in the attempted manner on petitioner was not made upon prior
leave of the trial court as required also in Rule 14, 17. As provided in 19, such
leave must be applied for by motion in writing, supported by affidavit of the plaintiff or
some person on his behalf and setting forth the grounds for the application.
Finally, and most importantly, because there was no order granting such leave,
petitioner Lourdes was not given ample time to file her Answer which, according to
the rules, shall be not less than sixty (60) days after notice.
2. LA NAVAL DRUG CORPORATION, petitioner, vs.
THE HONORABLE COURT OF APPEALS and WILSON C. YAO, respondents.
G.R. No. 103200 August 31, 1994
FACTS: Respondent Yao was the owner of a commercial building, a portion of which
is leased to herein petitioner. However, during the renewal of the contract of lease,
the two disagreed on the rental rate, and to resolve the controversy, they submitted
their disagreement to arbitration. Two arbitrators (Alamarez and Sabile) has been
appointed by the parties while the appointment of the third arbitrator (Tupang) was
held in abeyance because La Naval Drug instructed its arbitrator to defer the same
until its Board of Directors could convene and approved Tupangs appointment. This
was theorized by the respondent as dilatory tactics, hence, he prayed that a summary
hearing be conducted and direct the 2 arbitrators to proceed with the arbitration in
accordance with Contract of Lease and the applicable provisions of the Arbitration
law, by appointing and confirming the appointment of the Third Arbitrator; and that
the Board of Three Arbitrators be ordered to immediately convene and resolve the
controversy before it. The respondent court announced that the two arbitrators chose
Mrs. Eloisa R. Narciso as the third arbitrator and ordered the parties to submit their
position papers on the issue as to whether or not respondent Yao's claim for damages
may be litigated upon in the summary proceeding for enforcement of arbitration
agreement. In moving for reconsideration of the said Order, petitioner argued that in
Special Case No. 6024, the respondent court sits as a special court exercising limited
jurisdiction and is not competent to act on respondent Yao's claim for damages, which
poses an issue litigable in an ordinary civil action. However, respondent court was not
persuaded by petitioner's submission, hence, it denied the motion for reconsideration.
While the appellate court has agreed with petitioner that, under Section 6 of Republic
Act No. 876, a court, acting within the limits of its special jurisdiction, may in this case
solely determine the issue of whether the litigants should proceed or not to arbitration,
it, however, considered petitioner in estoppel from questioning the competence of the
court to additionally hear and decide in the summary proceedings private

respondent's claim for damages, it (petitioner) having itself filed similarly its own
counterclaim with the court a quo.

ISSUES:
1.
2.

WON THE COURT HAS JURISDICTION OVER THE PERSON.

WON THE COURT A QUO HAS JURISDICTION OVER THE SUBJECT
MATTER.

HELD: As to the first issue, it was held that jurisdiction over the person must be
seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of
an affirmative defense in an answer. Voluntary appearance shall be deemed a waiver
of this defense. The assertion, however, of affirmative defenses shall not
be constructed as an estoppel or as a waiver of such defense. With regard to the
second issue, it was held that where the court itself clearly has no jurisdiction over the
subject matter or the nature of the action, the invocation of this defense may be
done at any time. It is neither for the courts nor the parties to violate or disregard that
rule, let alone to confer that jurisdiction, this matter being legislative in character.
Barring highly meritorious and exceptional circumstances, such as herein before
exemplified, neither estoppel nor waiver shall apply. The court must then refrain from
taking up the claims of the contending parties for damages, which, upon the other
hand, may be ventilated in separate regular proceedings at an opportune time and
venue.
3. EB Villarosa & Partners Co., Ltd. v. Benito
Facts: Petitioner is a limited partnership with principal office address at Davao City
and with branch offices at Paraaque, MM and Lapasan, Cagayan de Oro City.
Petitioner
and
private
respondent
executed
a Deed
of
Sale with
Development Agreement wherein the former agreed to develop certain parcels of
land located at Cagayan de Oro belonging to the latter into a housing subdivision for
the construction of low cost housing units. They further agreed that in case
of litigation regarding any dispute arising therefrom, the venue shall be in the proper
courts of Makati. private respondent, as plaintiff, filed a Complaint for Breach of
Contract and Damages against petitioner, as defendant, before the RTC Makati for
failure of the latter to comply with its contractual obligation in that, other than a few
unfinished low cost houses, there were no substantial developments therein.
Summons, together with the complaint, were served upon the defendant, through its
Branch Manager at the stated address at Cagayan de Oro City but the Sheriff's
Return of Service stated that the summons was duly served "upon defendant E.B.
Villarosa & Partner Co., Ltd. thru its Branch Manager Engr. at their new office Villa
Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the face
of the original copy of the summons. Defendant prayed for the dismissal of the
complaint on the ground of improper service of summons and for lack of jurisdiction
over the person of the defendant. It contends that the RTC did not acquire jurisdiction
over its person since the summons was improperly served upon its employee in its
branch office at Cagayan de Oro City who is not one of those persons named in
Section 11, Rule 14 RoC upon whom service of summons may be made. plaintiff filed
an Opposition to Defendant's Motion to Dismiss. Plaintiff filed a Motion to Declare

Defendant in Default. the trial court issued an Order denying defendant's Motion to
Dismiss as well as plaintiffs Motion to Declare Defendant in Default. defendant, filed a
Motion for Reconsideration alleging that Sec.11, Rule 14 of the new Rules did not
liberalize but, on the contrary, restricted the service of summons on persons
enumerated therein; and that the new provision is very specific and clear in that the
word "manager" was changed to "general manager", "secretary" to "corporate
secretary", and excluding therefrom agent and director. Defendant's Motion for
Reconsideration
was
denied,
hence
this
petition.
Issue: Whether or not the trial court acquired jurisdiction over the person of petitioner
upon
service
of
summons
on
its
Branch
Manager

HELD: NO. The court agrees with the contention of Villarosa. Earlier cases have
uphold service of summons upon a construction project manager; a corporation's
assistant manager; ordinary clerk of a corporation; private secretary of corporate
executives; retained counsel; officials who had charge or control of the operations of
the corporation, like the assistant general manager; or the corporation's
Chief Finance and Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old rule.Notably, under the
new Rules, service of summons upon an AGENT of the corporation is NO
LONGER authorized.The designation of persons or officers who are authorized to
accept summons for a domestic corporation or partnership is now limited and more
clearly specified in Section11, Rule 14. The rule now states "general manager"
instead of only "manager"; "corporate secretary" instead of "secretary"; and
"treasurer" instead of "cashier." The phrase agent, or any of its directors" is
conspicuously deleted in the new rule.A strict compliance with the mode of service
is necessary to confer jurisdiction of the court over a corporation. The officer upon
whom service is made must be one who is named in the statute; otherwise the
service is insufficient. . . The liberal construction rule cannot be invoked and utilized
as a substitute for the plain legal requirements as to the manner in which summons
should be served on a domestic corporation. .
Villarosa vs Benito and Imperial Development Corporation (Rule 14)
Facts:
1) Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal
office address in Davao City and with branch offices in Paranaque and Cagayan de
Oro.
2) Petitioner and private respondent executed a Deed of Sale with Development
Agreement wherein the former agreed to develop certain parcels of land in Cagayan
de Oro owned by the latter into a housing subdivision for the construction of low cost
housing units. They further agreed that in case of litigation regarding any dispute
arising therefrom, the venue shall be in the proper courts of Makati.
3) Private respondent filed a complaint against petitioner for breach of contract and
damages with RTC Makati on the ground that other than a few unfinished low cost
houses, there were no substantial developments therein.

4) Summons, together with the complaint, were served upon Villarosa, through its
Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog,
Lapasan, Cagayan de Oro City but the Sheriff's Return of Service stated that the
summons was duly served "upon defendant E.B. Villarosa & Partner Co., Ltd. thru its
Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office
Villa Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the
face of the original copy of the summons.
5) Villarosa filed a Special Appearance with Motion to Dismiss alleging that "summons
intended for defendant" was served upon Engr. Wendell Sabulbero, an employee at
its branch office at Cagayan de Oro City. Villarosa prayed for the dismissal of the
complaint on the ground of improper service of summons and for lack of jurisdiction
over the person of the defendant.
Villarosa contends that the trial court did not acquire jurisdiction over its person since
the summons was improperly served upon its employee in its branch office at
Cagayan de Oro City who is not one of those persons named in Section 11, Rule 14
of the 1997 Rules of Civil Procedure upon whom service of summons may be made.
6) A motion to declare Villarosa in default was filed for failing to file an answer.
7) Imperial Development Corporation filed an Opposition to the Motion to Dismiss
filed by Villarosa, alleging that he records show that defendant, through its branch
manager, Engr. Wendell Sabulbero actually received the summons and the complaint
on May 8, 1998 as evidenced by the signature appearing on the copy of the
summons and not on May 5, 1998 as stated in the Sheriffs Return nor on May 6,
1998 as stated in the motion to dismiss; that defendant has transferred its office from
Kolambog, Lapasan, Cagayan de Oro to its new office address at Villa Gonzalo,
Nazareth, Cagayan de Oro; and that the purpose of the rule is to bring home to the
corporation notice of the filing of the action.
8) Trial court denied the motion to declare in default and the motion to dismiss.
9) Villarosa filed a motion for reconsideration contending strict compliance with the
Rules. Imperial filed an opposition to the MR. Villarosa filed a Reply contending that
the changes in the new rules are substantial and not just general semantics.

under the laws of the Philippines with

a juridical personality, service may be
made on the president, managing
partner, general manager, corporate
secretary, treasurer, or in-house
counsel. (emphasis supplied).

partnership duly registered, service may

be made on the president, manager,
secretary, cashier, agent, or any of its
directors. (emphasis supplied).

Petitioner contends that the enumeration of persons to whom summons may be

served is "restricted, limited and exclusive" following the rule on statutory construction
expressio unios est exclusio alterius and argues that if the Rules of Court Revision
Committee intended to liberalize the rule on service of summons, it could have easily
done so by clear and concise language. WE AGREE.
Earlier cases have uphold service of summons upon a construction project
manager15; a corporation's assistant manager16; ordinary clerk of a corporation17;
private secretary of corporate executives18; retained counsel19; officials who had
charge or control of the operations of the corporation, like the assistant general
manager20; or the corporation's Chief Finance and Administrative Officer21. In these
cases, these persons were considered as "agent" within the contemplation of the old
rule.22 Notably, under the new Rules, service of summons upon an agent of the
corporation is no longer authorized.

Service of summons upon persons other than those mentioned in Section 13 of Rule
14 (old rule) has been held as improper.26 Even under the old rule, service upon a
general manager of a firm's branch office has been held as improper as summons
should have been served at the firm's principal office. For the guidance of the Bench
and Bar, "strictest" compliance with Section 11 of Rule 13 of the 1997 Rules of Civil
Procedure (on Priorities in modes of service and filing) is mandated and the Court
cannot rule otherwise, lest we allow circumvention of the innovation by the 1997
Rules in order to obviate delay in the administration of justice.
Accordingly, we rule that the service of summons upon the branch manager of
petitioner at its branch office at Cagayan de Oro, instead of upon the general
manager at its principal office at Davao City is improper. Consequently, the trial court
did not acquire jurisdiction over the person of the petitioner.

10) The MR was denied.

Issue:
Whether the trial court acquired jurisdiction over Villarosa by service of summons to
its branch manager
Held: NO
Ratio Decidendi:
Sec. 11, Rule 14 of 1997 Rules of
Civil Procedure (NEW RULE)
When the defendant is a corporation,
partnership or association organized

Sec. 13, Rule 14 of Rules of Court (OLD

RULE)
If the defendant is a corporation organized
under the laws of the Philippines or a

The fact that defendant filed a belated motion to dismiss did not operate to confer
jurisdiction upon its person. There is no question that the defendant's voluntary
appearance in the action is equivalent to service of summons. Before, the rule was
that a party may challenge the jurisdiction of the court over his person by making a
special appearance through a motion to dismiss and if in the same motion, the
movant raised other grounds or invoked affirmative relief which necessarily involves
the exercise of the jurisdiction of the court. This doctrine has been abandoned.

The emplacement of this rule clearly underscores the purpose to enforce strict
enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss,
whether or not belatedly filed by the defendant, his authorized agent or attorney,
precisely objecting to the jurisdiction of the court over the person of the defendant can
by no means be deemed a submission to the jurisdiction of the court. There being no
proper service of summons, the trial court cannot take cognizance of a case for lack
of jurisdiction over the person of the defendant. Any proceeding undertaken by the
trial court will consequently be null and void.
4. ALBERTO G. PINLAC vs CA
FACTS:
1.

2.

3.

PETS: WWII veterans filed with RTC Quieting of Title of a forest land
acquired thru prescription. They named as RESP several persons and
corporations who are titled owners of subdivided parcels of land within the
subject property. One of those so impleaded as a party-respondent was the
Vil-Ma Maloles Subdivision (hereinafter, Vil-Ma).
Since personal service of summons could not be effected on Vil-Ma and
some of the other named respondents, petitioners moved for leave of
court to serve summons by publication- GRANTED. Published in the
Metropolitan Newsweek, a periodical edited and published in the City of
Caloocan and Malolos, Bulacan.
RESP declared in default : TC DECISION: rendered in favor of petitioners
and against the defaulted respondents

1) Declaring petitioners through the principal petitioners hereof, to wit: Alberto G.

Pinlac, Atty. Eriberto H. Decena, Rodolfo T. Reyes, Felipe Briones and Juanito S.
Metilla as absolute owners in fee simple title of the aforesaid Lots 1, 2 & 3 hereof by
virtue of extra-ordinary prescription, with the exception of the lands covered by the
respective transfer certificate of title belonging to the non-defaulted respondents;
4.

Pet for annulment of Decision was filed with CA by the titled owners of the
subdivided lots within Vil-Ma, that TC nullified all their titles, lack of
jurisdiction and extrinsic fraud:

(2) They were never made parties to Civil Case No. Q-35672, nor were their lots
described in the complaint, published summons, and Partial Decision. Named
defendant was VIL-MA, a totally separate and independent entity which had
already ceased to exist way back in January of 1976. Moreover, the summons, as
well as the Partial Decision was not published in a newspaper or periodical of general
circulation. Thus, the defective service of summons to said defendant did not place
the individual lot owners under the trial courts jurisdiction, nor are they bound by the
adverse judgment.
(3) They were denied due process of law as they were not given their day in
court. They
should
have
been
included
as indispensable partiesrespondents in Civil Case No. Q-35672 since the petitioners therein were seeking to
annul their respective transfer certificates of title.

5. CA: GRANTED the injunction: indispensable parties in the case, were not
individually served with summons. So annulled decision: becomes all the more
apparent when petitioners claim or asseverate that the assailed Partial Decision can
not bind Vilar-Maloles (VILMA), the umbrella name, for the simple reason that said
PARTNERSHIP was dissolved on January 26, 1976, for it can no longer be sued as it
had no more juridical personality.
6. Petitioners contend that the summons and the Partial Decision were published in a
local newspaper edited in Caloocan City and Malolos, Bulacan known as
METROPOLITAN NEWSWEEK implying that said summons and Partial Decision
were not published in a newspaper of general circulation in Quezon City as
required by PD 1079, Sec. 1 thereof. Petitioners not having been duly notified of the
hearing/proceedings, the Partial Decision being assailed is without significance to
them or as far as petitioners are concerned said Partial Decision is null and void.
7. CERTIORARI: PETS Contend that the service of summons by publication was
legal and in accordance with the requirements of Rule 14, Section 14 of the Rules of
Court. The service by publication was done pursuant to the orders of the trial court
dated May 5, 1993 and September 29, 1983.
ISSUE: WHETHER OR NOT THE COURT A-QUO HAS ACQUIRED JURISDICTION
OVER RESPONDENT VILMA MALOLES SUBDIVISION BY THE PUBLICATION OF
THE SUMMONS AND PETITION AS ORDERED BY THE COURT IN CIVIL CASE
NO. Q-35672 AND SO THE PARTIAL DECISION (ANNEX B) WAS LEGAL, VALID
AND PROPER.
HELD: NEGAVOO
While the service of summons by publication may have been done with the approval
of the trial court, it does not cure the fatal defect that the Metropolitan
Newsweek is not a newspaper of general circulation in Quezon City. The Rules
strictly require that publication must be in a newspaper of general circulation and in
such places and for such time as the court may order. The court orders relied
upon by petitioners did not specify the place and the length of time that the
summons was to be published. In the absence of such specification,
publication in just any periodical does not satisfy the strict requirements of the
rules. The incomplete directive of the court a quo coupled with the defective
publication of the summons rendered the service by publication ineffective. The
modes of service of summons should be strictly followed in order that the court may
acquire jurisdiction over the respondents, and failure to strictly comply with the
requirements of the rules regarding the order of its publication is a fatal defect in the
service of summons. It cannot be overemphasized that the statutory requirements of
service of summons, whether personally, by substituted service, or by publication,
must be followed strictly, faithfully and fully, and any mode of service other than that
prescribed by the statute is considered ineffective.
Be that as it may, even granting that the publication strictly complied with the rules,
the service of summons would still be ineffective insofar as private respondents are
concerned. At the time the complaint for Quieting of Title was filed on November 2,
1983, Vilma Maloles Subdivision no longer existed as a juridical entity. Vilma
Maloles Subdivision, a partnership, was dissolved more than six (6) years
earlier, as evidenced by a Certificate of Dissolution issued by the SEC dated

January 26, 1976. Consequently, it could no longer be sued having lost its
juridical personality.
5. Oaminal vs Castillo : 152776 : October 8, 2003
FACTS: Petitioner filed a complaint for collection against respondents with the RTC.
The summons together with the complaint was served upon the secretary of
respondent. Respondents filed their Urgent Motion to Declare Service of Summons
Improper and Legally Defective alleging that the Sheriffs Return has failed to comply
on substituted service of summons but said motion was not heard due to the Judges
absence. Petitioner then filed an Omnibus Motion to Declare [Respondents] in Default
and to Render Judgment because no answer [was] filed by [the latter]. The
respondents filed Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and
Answer with. The judge denied [respondents] Motion to Dismiss, and admitted [their]
Answer. However six months after admitting their answer, the judge ruled that
[respondents] Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer
with Counterclaim was filed outside the period to file answer, hence he (1) denied the
Motion to Admit Motion to Dismiss and Answer; (2) declared [respondents] in default;
and (3) ordered [petitioner] to present evidence ex-parte within ten days from receipt
of [the] order, [failing] which, the case will be dismissed.
ISSUE: WON respondents were properly declared in default?

6. SPOUSES EFREN MASON and DIGNA MASON vs. COURT OF APPEALS

[G.R. No. 144662. October 13, 2003]
Facts:
Petitioners spouses Efren and Digna Mason owned two parcels of land
located along Epifanio delos Santos Avenue in Pasay City. On March 30, 1993,
petitioners and private respondent Columbus Philippines Bus Corporation (hereafter
Columbus) entered into a lease contract, under which Columbus undertook to
construct a building worth P10M at the end of the third year of the lease. Because
private respondent failed to comply with this stipulation, the petitioners on November
13, 1998, filed a complaint for rescission of contract with damages against private
respondent before the RTC of Pasay City. Summons was served upon private
respondent through a certain Ayreen Rejalde. While the receiving copy of the
summons described Rejalde as a secretary of Columbus, the sheriffs return
described Rejalde as a secretary to the corporate president, duly authorized to
receive legal processes.

HELD: NO. Respondents herein were declared in default by the trial court on May 22,
2001, purportedly because of their delay in filing an answer. Its unexpected volte face
came six months after it had ruled to admit their Answer on November 16, 2000.
Indiana Aerospace University v. Commission on Higher Education held that no
practical purpose was served in declaring the defendants in default when their
Answer had already been filed albeit after the 15-day period, but before they were
declared as such. Applying that ruling to the present case, we find that respondents
were, therefore, imprudently declared in default.

Private respondent failed to file its answer or other responsive pleading,

hence petitioners filed a motion to declare private respondent in default. The motion
was granted and petitioners were allowed to present evidence ex-parte. Thereafter,
the case was submitted for decision.

Oaminal vs Castillo (case doctrines)

Private respondent filed a motion for reconsideration, which was denied.

Undaunted, private respondent filed a manifestation and motion to lift the writ of
execution. It suffered the same fate as the motion for reconsideration for being
dilatory. The branch sheriff was directed to proceed with the enforcement of the
decision.

Service of defective summons was cured by voluntary appearance. The filing of

Motions seeking affirmative relief -- to admit answer, for additional time to file answer,
for reconsideration of a default judgment, and to life order of default with motion for
reconsideration -- are considered voluntary submission to the jurisdiction of the court.
Lapses in the literal observance of a rule of procedure will be overlooked when they
do not involve public policy, when they arose from an honest mistake or unforeseen
accident, when they have not prejudiced the adverse party and have not deprived the
court of its authority. Conceived in the best traditions of practical and moral justice
and common sense, the Rules of Court frown upon hairsplitting technicalities that do
not square with their liberal tendency and the the ends of justicee unless something in
the nature of the factors just stated intervene.

RTC: The trial court rendered its decision in favor of the petitioners declaring
the contract of lease rescinded, terminated and cancelled. That decision became final
on May 12, 1999. The following day, private respondent filed a motion to lift order of
default, which was opposed by petitioners. The trial court denied the motion to lift
order of default.

CA: Private respondent appealed to the Court of Appeals, which ruled in its
favor. The CA held that the trial court erred when it denied private respondents
motion to lift order of default. The appellate court pointed out that private respondent
was not properly served with summons, thus it cannot be faulted if it failed to
file an Answer. Section 11, Rule 14 of the 1997 Rules of Civil Procedure requires
that service of summons upon domestic private juridical entity shall be made through
its president, managing partner, general manager, corporate secretary, treasurer or
in-house counsel. Since service upon private respondent was made through a
certain Ayreen Rejalde, a mere filing clerk in private respondents office, as evidenced
by the latters employment record, such service cannot be considered valid.
Consequently, the subsequent proceedings, including the order of default, judgment
by default and its execution, were also invalid because the trial court did not acquire

jurisdiction over private respondent. Besides, judgments by default are not favored,
especially so when there is a prima facie showing that the defaulting party has a
meritorious defense, which in this case was grounded on the contract of lease sued
upon, said the Court of Appeals.
Petitioner filed a motion for reconsideration, but to no avail.
Issue 1: Whether there was valid service of summons on private respondent for the
trial court to acquire jurisdiction, and
Petitioner: On the first issue, petitioners contend that while Section 11, Rule
14 of the 1997 Rules of Civil Procedure clearly specifies the persons authorized to
receive summons on behalf of a private juridical entity, said provision did not abandon
or render inapplicable the substantial compliance rule. Petitioners cite Millenium
Industrial Commercial Corporation v. Tan, and maintain that this Court, by referring
to E.B Villarosa & Partner Co., Ltd. v. Judge Benito, effectively ruled that said
provision is the statement of the general rule on service of summons upon
corporation and the substantial compliance rule is the exception. Petitioners claim
that this Court, in an array of cases, upheld the substantial compliance rule when it
allowed the validity of the service of summons on the corporations employee other
than those mentioned in the Rule where said summons and complaint were in fact
seasonably received by the corporation from said employee.
Held 1:
The question of whether the substantial compliance rule is still
applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been
settled in Villarosa which applies squarely to the instant case.
In the said case, petitioner E.B. Villarosa & Partner Co. Ltd. (hereafter
Villarosa) with principal office address at 102 Juan Luna St., Davao City and with
branches at 2492 Bay View Drive, Tambo, Paraaque, Metro Manila and Kolambog,
Lapasan, Cagayan de Oro City, entered into a sale with development agreement with
private respondent Imperial Development Corporation. As Villarosa failed to comply
with its contractual obligation, private respondent initiated a suit for breach of contract
and damages at the RTC of Makati. Summons, together with the complaint, was
served upon Villarosa through its branch manager at Kolambog, Lapasan, Cagayan
de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the
ground of improper service of summons and lack of jurisdiction. The trial court denied
the motion and ruled that there was substantial compliance with the rule, thus, it
acquired jurisdiction over Villarosa. The latter questioned the denial before us in its
petition for certiorari. We decided in Villarosas favor and declared the trial court
without jurisdiction to take cognizance of the case. We held that there was no valid
service of summons on Villarosa as service was made through a person not
included in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure, which revised the Section 13, Rule 14 of the 1964 Rules of Court. We
discarded the trial courts basis for denying the motion to dismiss, namely, private
respondents substantial compliance with the rule on service of summons, and fully
agreed with petitioners assertions that the enumeration under the new rule is
restricted, limited and exclusive, following the rule in statutory construction
that expressio unios est exclusio alterius. Had the Rules of Court Revision
Committee intended to liberalize the rule on service of summons, we said, it could
have easily done so by clear and concise language. Absent a manifest intent to

liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997
Rules of Civil Procedure.
Neither can herein petitioners invoke our ruling in Millenium to support their
position for said case is not on all fours with the instant case. We must stress that
Millenium was decided when the 1964 Rules of Court were still in force and effect,
unlike the instant case which falls under the new rule. Hence, the cases cited by
petitioners where we upheld the doctrine of substantial compliance must be deemed
overturned by Villarosa, which is the later case.

Issue 2: Whether private respondents motion to lift order of default was in order.
Petitioners: On the second issue, petitioners claim that private respondents
motion to lift order of default was not in order for it was filed late, contrary to the
provision in sub-paragraph (b), Section 3, Rule 9 of the 1997 Rules of Civil
Procedure, which requires filing of the motion after notice but before judgment.
Private respondent, in turn, argues that since service upon it was invalid,
the trial court did not acquire jurisdiction over it. Hence, all the subsequent
proceedings in the trial court are null and void, including the order of default. This
renders the second issue now moot and academic.
Held2:
We find merit in private respondents submissions. Since we have
ruled that service of summons upon private respondent through its filing clerk cannot
be considered valid, it necessarily follows therefore that the Regional Trial Court of
Pasay City did not acquire jurisdiction over private respondent. Consequently, all the
subsequent proceedings held before it, including the order of default, are null and
void. As private respondent points out, the second issue has become moot and
academic.
WHEREFORE, the instant petition is DENIED.
7. [G.R. No. 159590. October 18, 2004] HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, petitioner, vs. CECILIA DIEZ CATALAN, respondent.
[G.R. No. 159591. October 18, 2004]
HSBC INTERNATIONAL TRUSTEE LIMITED, petitioner, vs. CECILIA DIEZ
CATALAN, respondent.
FACTS:
On January 29, 2001, respondent filed before the RTC, a complaint for a sum of
money with damages against petitioner HSBANK, docketed as Civil Case No. 0111372, due to HSBANKs alleged wanton refusal to pay her the value of five HSBANK
checks issued by Frederick Arthur Thomson (Thomson) amounting to
HK$3,200,000.00.[2]
On February 7, 2001, summons was served on HSBANK at the Enterprise Center,
Tower I, Ayala Avenue corner Paseo de Roxas St., Makati City.[3] HSBANK filed a
Motion for Extension of Time to File Answer or Motion to Dismiss dated February 21,

2001.[4] Then, it filed a Motion to Dismiss, dated March 8, 2001, on the grounds that
(a) the RTC has no jurisdiction over the subject matter of the complaint; (b) the RTC
has not acquired jurisdiction for failure of the plaintiff to pay the correct filing or docket
fees; (c) the RTC has no jurisdiction over the person of HSBANK; (d) the complaint
does not state a cause of action against HSBANK; and (e) plaintiff engages in forumshopping. On September 10, 2001, Catalan filed an Amended Complaint impleading
petitioner HSBC TRUSTEE as co-defendant and invoking Article 19 of the Civil Code
as basis for her cause of action.The Amended Complaint alleges:Defendants
HSBANK and HSBC TRUSTEE, doing business in the Philippines, are corporations
duly organized under the laws of the British Virgin Islands with branch offices at Level
12, 1 Queens Road Central, Hongkong and may be served with summons and other
court processes through their main office in Manila with address at HSBC, the
Enterprise Center, Tower 1, Ayala Avenue corner Paseo de Roxas Street, Makati City.
In March 1997, Thomson drew 5 checks payable to Catalan in thetotal amount of
HK$3.2 million. Catalan presented these checks to HSBC[Bank]. The checks were
dishonored for having insufficient funds. Thomsondemanded that the checks be made
good because he, in fact, had sufficientfunds.
Catalan knowing that Thomson had communicated with the Bank,askedHSBCBank to
clear the checks and pay her the said amount. HSBC didnot heed her.
Thomson died but Catalan was not paid yet. The account wastransferred to HSBC
[Trustee]. Catalan then requested Trustee to pay her. They still refused and even
asked her to submit back to them the originalchecks for verification.
Catalan and her lawyer went to Hongkong on their own expense topersonally submit
the checks. They still were no
Catalan prays that HSBANK and HSBC TRUSTEE be ordered to pay P20,864,000.00
representing the value of the five checks at the rate of P6.52 per HK$1 as of January
29, 2001 for the acts of HSBANK and HSBC TRUSTEE in refusing to pay the amount
justly due her, in addition to moral and exemplary damages, attorneys fees and
litigation expenses.
On October 2, 2001, HSBANK filed a Motion to Dismiss Amended Complaint on the
grounds that the RTC has not acquired jurisdiction over the person of HSBANK for
improper service of summons; and it did not submit to the jurisdiction of the RTC by
filing a motion for extension of time to file a motion to dismiss.
On October 17, 2001, summons for HSBC TRUSTEE was tendered to the In House
Counsel of HSBANK (Makati Branch) at the Enterprise Center, Tower 1, Ayala Avenue
corner Paseo de Roxas, Makati. Without submitting itself to the jurisdiction of the
RTC, HSBC TRUSTEE filed a Special Appearance for Motion to Dismiss Amended
Complaint, HSBC TRUSTEE alleges that tender of summons through HSBANK
Makati did not confer upon the RTC jurisdiction over it because: (a) it is a corporation
separate and distinct from HSBANK; (b) it does not hold office at the HSBANK Makati
or in any other place in the Philippines; (c) it has not authorized HSBANK Makati to
receive summons for it; and, (d) it has no resident agent upon whom summons may
be served because it does not transact business in the Philippines.

Subsequently, HSBC TRUSTEE filed a Submission, dated November 15, 2001,

attaching the Affidavit executed in Hongkong by Phoenix Lam, Senior Vice-President
of HSBC TRUSTEE, attesting to the fact that: 1) HSBC TRUSTEE has not done nor is
it doing business in the Philippines; 2) it does not maintain any office in Makati or
anywhere in the Philippines; 3) it has not appointed any agent in Philippines; and 4)
HSBANK Makati has no authority to receive any summons or court processes for
HSBC TRUSTEE.[12]
On May 15, 2002, the RTC issued an Order denying the two motions to dismiss.[13]
The RTC held that it has jurisdiction that it acquired jurisdiction over the person of
defendants because the question of whether a foreign corporation is doing business
or not in the Philippines cannot be a subject of a Motion to Dismiss but should be
ventilated in the trial on the merits; and defendants voluntarily submitted to the
jurisdiction of the RTC setting up in their Motions to Dismiss other grounds aside from
lack of jurisdiction.HSBANK and HSBC TRUSTEE filed separate motions for
reconsideration but they were denied by the RTC.
On February 21, 2003, Catalan moved to declare HSBANK and HSBC TRUSTEE in
default for failure to file their answer to the amended complaint.
.On March 5, 2003, HSBANK and HSBC TRUSTEE filed separate petitions for
certiorari and/or prohibition with the CA, docketed as CA-G.R. SP Nos. 75756[16] and
75757,[17] respectively.
Subsequently, HSBANK and HSBC TRUSTEE filed before the RTC separate
Answers ad cautelam, both dated March 18, 2003, as a precaution against being
declared in default and without prejudice to the separate petitions for certiorari and/or
prohibition then pending with the CA.Meanwhile, the two petitions for certiorari before
the CA were consolidated and after responsive pleadings were filed, the cases were
deemed submitted for decision.In a consolidated Decision dated August 14, 2003, the
CA dismissed the two petitions for certiorari.
Issue:
Did the RTC acquire jurisdiction over HSBANK and HSBC TRUSTEE?
Held:The Rules of Court provides that a court generally acquires jurisdiction over a
person through either a valid service of summons in the manner required by law or
the persons voluntary appearance in court.SC finds that both lower courts overlooked
Section 20 of Rule 14 of the 1997 Rules of Civil Procedure which provides that the
inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary appearance.
Nonetheless, such omission does not aid HSBANKs case.
The filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a
voluntary submission to the jurisdiction of the RTC. It was a conditional appearance,
entered precisely to question the regularity of the service of summons. It is settled
that a party who makes a special appearance in court challenging the jurisdiction of
said court, e.g., invalidity of the service of summons, cannot be considered to have
submitted himself to the jurisdiction of the court. HSBC TRUSTEE has been
consistent in all its pleadings in assailing the service of summons and the jurisdiction
of the RTC over it. Thus, HSBC TRUSTEE cannot be declared in estoppel when it

filed an Answer ad cautelam before the RTC while its petition for certiorari was
pending before the CA. Such answer did not render the petition for certiorari before
the CA moot and academic. The Answer of HSBC TRUSTEE was only filed to
prevent any declaration that it had by its inaction waived the right to file responsive
pleadings.
Admittedly, HSBC TRUSTEE is a foreign corporation, organized and existing under
the laws of the British Virgin Islands. For proper service of summons on foreign
corporations, Section 12 of Rule 14 of the Revised Rules of Court provides:
SEC. 12.Service upon foreign private juridical entity. When the defendant is a
foreign private juridical entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for that
purpose, or if there be no such agent, on the government official designated by law to
that effect, or on any of its officers or agents within the Philippines.
The allegations in the amended complaint subject of the present cases did not
sufficiently show the fact of HSBC TRUSTEEs doing business in the Philippines.
There is no allegation in the amended complaint that HSBANK is the domestic agent
of HSBC TRUSTEE to warrant service of summons upon it. Thus, the summons
tendered to the In House Counsel of HSBANK (Makati Branch) for HSBC TRUSTEE
was clearly improper.There being no proper service of summons, the RTC cannot
take cognizance of the case against HSBC TRUSTEE for lack of jurisdiction over it.
Any proceeding undertaken by the RTC is therefore null and void.Accordingly, the
complaint against HSBC TRUSTEE should have been dismissed for lack of
jurisdiction over it.
HSBC INTERNATIONAL TRUSTEE LIMITED, petitioner,
vs.
CECILIA DIEZ CATALAN, respondent.
G.R. No. 159590 & 159591 October 18, 2004|
FACTS

Frederick Arthur Thomson drew 5 checks payable to Catalan in the total

amount of HK$3.2 million. Catalan presented these checks to HSBC [Bank].
The checks were dishonored for having insufficient funds. Thomson
demanded that the checks be made good because he, in fact, had sufficient
funds.

Catalan knowing that Thomson had communicated with the Bank, asked
HSBCBank to clear the checks and pay her the said amount. HSBC did not
heed her.

Thomson died but Catalan was not paid yet. The account was transferred to
HSBC [Trustee]. Catalan then requested Trustee to pay her. They still
refused and even asked her to submit back to them the original checks for
verification.

Catalan and her lawyer went to Hongkong on their own expense to

personally submit the checks. They still were not honored, leading Catalan
to file a suit against HSBC to collect her HK$3.2M

ISSUES
Whether or not HSBC Bank and Trustee are liable to pay damages to Catalan on the
ground of Abuse of right under Article 19 of the Civil Code
ARGUMENTS
Petitioner: HSBC claims that they are a foreign corporation not doing business in the
Philippines thus the courts do not have jurisdiction over them. Moreover, there is no
cause of action because it was not alleged in the there was abuse of right.
Respondent: Catalan claims that although HSBC has the right to examine the
checks, they did so in bad faith because they required her to submit all sorts
of documents and yet even upon showing that the checks were good, the Bank still
refused to release the money to her. There was abuse of right on the part of the
Bank. HOLDING & RATIO DECIDENDI THERE IS CAUSE OF ACTION, IT NEED
NOT BE EXPRESSLY STATED, THE FACTS SUFFICIENTLY DESCRIBE THAT
THERE WAS AN ABUSEOF RIGHT.
APPLICATION:
Article 19 of the Civil Code speaks of the fundamental principle of law and
human conduct that a person "must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe
honesty and good faith." It sets the standards which may be observed not only in the
exercise of ones rights but also in the performance of ones duties.
When a right is exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be held responsible. But a right,
though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. A person should be protected only
when he acts in the legitimate exercise of his right, that is, when he acts with
prudence and in good faith; but not when he acts with negligence or abuse.
There is an abuse of right when it is exercised for the only purpose of prejudicing or
injuring another. The exercise of a right must be in accordance with the purpose
for which it was established, and must not be excessive or unduly harsh; there must
be no intention to injure another.
Thus, in order to be liable under the abuse of rights principle, three elements must
concur, to wit: (a) that there is a legal right or duty; (b) which is exercised in bad faith;
and (c) for the sole intent of prejudicing or injuring another.
HSBANK is being sued for unwarranted failure to pay the checks notwithstanding the
repeated assurance of the drawer Thomson as to the authenticity of the check sand
frequent directives to pay the value thereof to Catalan. Her allegations in the
complaint that the gross inaction of HSBANK on Thomsons instructions, as well as its

evident failure to inform Catalan of the reason for its continued inaction and nonpayment of the checks, smack of insouciance on its part, are sufficient statements of
clear abuse of right for which it may be held liable to Catalan for any damages she
incurred resulting therefore. HSBANKs actions or lack thereof, prevented Catalan
from seeking further redress with Thomson for the recovery of her claim while the
latter was alive

5.

After receiving the memorandum, private respondent immediately filed a

case for injunction with prayer for temporary restraining order and a writ of
preliminary injunction against petitioner in the RTC of Iloilo, Branch 22
docketed as Civil Case No. 00-26187, to restrain petitioner from transferring
him to the central office in Quezon City.

6.

April 14, 2000 - Petitioner filed an omnibus motion for the dismissal of the
complaint on the grounds of lack of jurisdiction over his person and the
subject matter, and lack of cause of action. He averred that he never
received any summons or copy of the complaint against him, hence, the
court never acquired jurisdiction over his person. He further contended that
the case involved personnel movement of a government employee in the
public service and should have been appealed to the Civil Service
Commission instead of the regular courts.

7.

The trial court denied petitioners motion to dismiss the complaint against
him and granted the writ of preliminary injunction prayed for by private
respondent ordering petitioner to "desist from giving effect to the reassignment of plaintiff (herein private respondent) from his permanent
station in Iloilo City to the Quezon City office.

8.

Petitioner moved for a reconsideration of the above decision but it was

denied. Hence, this petition.

DECISION OF THE COURT:

The Decision of the Court of Appeals, dated August 14, 2003, in CA-G.R. SP No.
75757 dismissing the petition for certiorari of the Hongkong and Shanghai Banking
Corporation Limited is AFFIRMED. The petition in G.R. No. 159591 is GRANTED.
The Decision of the Court of Appeals, dated August 14, 2003, in CA-G.R. SP No.
75756 dismissing the petition for certiorari of the HSBC International Trustee Limited
is REVERSED and SET ASIDE. The Regional Trial Court, Branch 44, Bacolod City is
declared without jurisdiction to take cognizance of Civil Case No. 01-11372 against
the HSBC International Trustee Limited, and all its orders and issuances with respect
to the latter are hereby ANNULLED and SET ASIDE. The said Regional Trial Court is
hereby ORDERED to DESIST from maintaining further proceedings against the
HSBC International Trustee Limited in the case aforestated.
8. PABLO B. CASIMINA, then General Manager of the Philippine Fisheries
Development Authority, petitioner,
vs.
HON. EMILIO B. LEGASPI, in his capacity as Presiding Judge of RTC of Iloilo,
Branch 22 and EMMANUEL T. ILLERA, respondents.
Facts:
1.

Private respondent Emmanuel T. Illera was the Port Manager of the Iloilo
Fishing Port Complex (IFPC) while petitioner Pablo B. Casimina was the
then General Manager of the Philippine Fisheries Development Authority
(PFDA) with offices in Quezon City.

2.

March 17, 2000 - Petitioner Casimina issued Special Order No. 821 reassigning private respondent from Iloilo to the central office in Quezon City.

3.

March 22, 2000 - Private respondent sent a memorandum to petitioner

praying for a reconsideration of the SO. It included that he was surprised by
the SO and was not discussed before him.

4.

March 29, 2000 - Petitioner issued a memorandum to private respondent

stating therein the reason for the re-assignment stating that while in the
Central Office, private respondent is expected to help review and formulate
credit and collection policies that would negate the accumulation of
uncollected accounts receivables, in addition to the other duties that may be
assigned to him in the interest of the service. It also ordered private
respondent Illera to cease and desist from the further performance of his
duties as Port Manager of the Iloilo Fish Port Complex effective 03 April
2000 and to assume duties and responsibilities as stated.

ISSUES: WON Respondent Hon. Legaspi exercised grave abuse of discretion which
is tantamount to lack of or in excess of jurisdiction in deciding the case when the said
trial court has not acquired jurisdiction over the person of the petitioner and the
subject matter of the case
HELD: Yes. In the case at bar, petitioner never received the summons against him,
whether personally or in his office. The records show that petitioners official address
as the General Manager of the Philippine Fisheries Development Authority (PFDA)
was in Quezon City. Yet, the summons, together with a copy of the complaint, was
served not in his Manila office but in PFDAs Iloilo branch office and received by the
records receiving officer there. We have held that the failure to faithfully, strictly and
fully comply with the requirements of substituted service renders the service
ineffective.
The SC disagreed with Respondent Hon. Legaspi in presuming that the said Records
Receiving Officer (was) authorized to receive the communication or court processes
addressed to the defendant.

SC held that the doctrine of substantial compliance requires that for there to be a
valid service of summons, actual receipt of the summons by the defendant through
the person served must be shown. SC further requires that where there is substituted
service, there should be a report indicating that the person who received the
summons in the defendants behalf was one with whom petitioner had a relation of
confidence ensuring that the latter would receive or would be notified of the summons
issued in his name. None of these was observed in the case at bar. We cannot infer
actual receipt of summons by petitioner from the fact that the government corporate

counsel filed a motion to dismiss the case against him and Mr. Cosejo appeared on
his behalf during the summary hearing for the issuance of a temporary restraining
order to ask for the postponement of the case. It is well-settled that a party who
makes a special appearance in court challenging the jurisdiction of said court based
on the ground of invalidity of summons, among others, cannot be considered to have
submitted himself to the jurisdiction of the court. Even the assertion of affirmative
defenses, aside from lack of jurisdiction over the person of the defendant, cannot be
considered a waiver of the defense of lack of jurisdiction over such person. PETITION
GRANTED.
9. VELAYO-FONG V. SPOUSES VELAYO
Facts:

summons but remembers that a man hurled some papers at her while she
was entering the elevator and, not knowing what the papers were all about,
she threw back the papers to the man before the elevator closed; that she
has a valid and meritorious defense to refute the material allegations of
respondents' complaint.
-

She also argued that the summons should have been served through
extraterritorial service since she is a non-resident.

ISSUES: 1. How may service of summons be effected on a non-resident?

2. WON there was a valid service of summons on Velayo-Fong. YES.
Ruling:

Spouses Raymond and Maria Hedy Velayo filed a complaint for collection of
sum of money against Velayo-Fong.

In the complaint, Spouses Velayo alleged that Velayo-Fong was a resident of

Honolulu, Hawaii, USA.

Since Velayo-Fong was a non-resident and not found in the Philippines,

Spouses Velayo-Fong prayed for a writ to attach Velayo-Fong's properties
found in the Philippines.

1.

Under Sec. 17, Rule 14, when the defendant is a nonresident and he is not
found in the country, summons may be served extraterritorially. This kind of
service of summons applies only where the action is in rem because in in
remand quasi in rem actions, jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction on the court provided that the court
acquires jurisdiction over the res.
a.

Where the action is in personam and when the defendant is a nonresident, personal service of summons within the state is essential
to the acquisition of jurisdiction over the person. This cannot be
done, however, if the defendant is not physically present in the
country, and thus, the court cannot acquire jurisdiction over his
person and therefore cannot validly try and decide the case against
him.

However, before the application for the writ can be acted upon by the RTC,
Spouses Velayo filed an Urgent Motion praying that the summons be served
to Velayo-Fong at her Two Condominium Suites. One at Roxas Boulevard,
Pasay City and another, at Burgos Street, T. Towers Condominium, Makati.
Subsequently, the RTC granted the said motion.

Then, the Process Server indicated on his Officers Return that after several
failed attempts to serve the copy of summons and complaints issued at the
given addresses of Velayo-Fong, finally, the Process Server was able to
serve personally the summons together with the copy of the complaint upon
Velayo-Fong, not at her two addresses but at the lobby of a hotel, right in the
presence of a lobby counter personnel but Velayo-Fong refused to sign in
receipt thereof.

b.

In the present case, Spouses Velayo's cause of action and their

prayer that actual and moral damages, plus attorney's fees, be
awarded in their favor affect the parties alone, not the whole world.
Any judgment therein is binding only upon the parties properly
impleaded. Thus, it is an action in personam. As such, personal
service of summons upon the defendants is essential in order for
the court to acquire jurisdiction over their persons.

Later, the RTC in its Order declared Velayo-Fong in default for failure to file
an answer.

c.

Velayo-Fong, upon knowing the order of the RTC, filed a Motion to Set Aside
Order of Default claiming that she was prevented from filing a responsive
pleading and defending herself against respondents' complaint because of
fraud, accident or mistake; that contrary to the Officer's Return, no summons
was served upon her; that she has valid and meritorious defenses to refute
respondents' material allegations.

Although in the complaint, Velayo-Fong was alleged to be a nonresident who is not found in the Philippines for which reason the
Spouses first prayed that a writ of preliminary attachment be issued
against her properties within the Philippines to confer jurisdiction
upon the RTC. However, the spouses did not pursue its application
for said writ when Velayo-Fong was subsequently found physically
present in the Philippines and personal service of summons was
effected on her.

The RTC denied the Motion and CA affirmed RTCs order.

Now, Velayo-Fong questioned the propriety and validity of the service of

summons made upon her as she did not remember having been served with

2.

A process server's certificate of service is prima facie evidence of the facts

as set out in the certificate. Between the claims of non-receipt of summons
by a party against the assertion of an official whose duty is to send notices,
the latter assertion is secured by the presumption that official duty has been
regularly performed.

To overcome the presumption of regularity of performance of official

functions in favor of such Officer's Return, the evidence against it
must be clear and convincing.

In this case, Velayo-Fong failed to come forward with the requisite

quantum of proof to the contrary, the presumption of regularity of
performance on the part of the process server stands.

NOTEs:
-

the party seeking to have the order of default lifted must first show that her
failure to file an answer or any other responsive pleading was due to fraud,
accident, mistake, or excusable neglect and then she must show that she
has a valid and meritorious defense.

In this case, petitioner failed to show that her failure to file an answer was
due to fraud, accident, mistake or excusable neglect. Except for her bare
unsupported allegation that the summons were only thrown to her at the
elevator, petitioner did not present any competent evidence to justify the
setting aside of the order of default.

she must also show that she has a meritorious defense or that something
would be gained by having the order of default set aside.

In the present case, petitioner contented herself with stating in her affidavit
of merit that the cases against respondent Raymond were filed at the
instance of her father.41 Such allegation is a conclusion rather than a
statement of facts showing a meritorious defense. The affidavit failed to
controvert the facts alleged by the respondents. Petitioner has not shown
that she has a meritorious defense.

Velayo-Fong failed to show that her failure file an answer was not due to
fraud, accident, mistake, or excusable neglect; and that she had a valid and
meritorious defense, there is no merit to her prayer for a liberal interpretation
of procedural rules.
10. PEDRO T. SANTOS, JR. vs PNOC EXPLORATION CORPORATION
G.R. No. 170943

September 23, 2008

Facts:
Respondent PNOC Exploration Corp. filed a complaint for a sum of money
against petitioner Santos, Jr. in the RTC of Pasig City. The complaint sought to
collect the amount representing petitioners unpaid balance of the car loan
advanced to him by respondent when he was still a member of its board of
directors.
Personal service of summons to petitioner failed because he could not be
located in his last known address despite earnest efforts to do so. Subsequently,
on respondents motion, the trial court allowed service of summons by
publication.

Respondent caused the publication of the summons in Remate, a

newspaper of general circulation in the Philippines. Thereafter, respondent
submitted the affidavit of publication of the advertising manager of Remate and
an affidavit of service of respondents employeeto the effect that he sent a copy
of the summons by registered mail to petitioners last known address.
When petitioner failed to file his answer within the prescribed period,
respondent moved that the case be set for the reception of its evidence ex parte.
The trial court granted the motion in an order dated September 11, 2003.
Respondent proceeded with the ex parte presentation and formal offer of its
evidence. Thereafter, the case was deemed submitted for decision.
On October 28, 2003, petitioner filed an Omnibus Motion for
Reconsideration and to Admit Attached Answer. He sought reconsideration of
the September 11, 2003 order, alleging that the affidavit of service submitted by
respondent failed to comply with Section 19, Rule 14 of the Rules of Court as it
was not executed by the clerk of court. He also claimed that he was denied due
process as he was not notified of the September 11, 2003 order. He prayed that
respondents evidence ex parte be stricken off the records and that his answer be
admitted.
Respondent naturally opposed the motion. It insisted that it complied with
the rules on service by publication. Moreover, pursuant to the September 11,
2003 order, petitioner was already deemed in default for failure to file an answer
within the prescribed period.
RTC: The trial court denied petitioners motion for reconsideration of the
September 11, 2003 order. It held that the rules did not require the affidavit of
complementary service by registered mail to be executed by the clerk of court. It
also ruled that due process was observed as a copy of the September 11, 2003
order was actually mailed to petitioner at his last known address. It also denied
the motion to admit petitioners answer because the same was filed way beyond
the reglementary period.
CA: The Court of Appeals rendered its decision sustained orders of the trial
court and dismissing the petition. It denied reconsideration. Thus, this petition.
Issues:
1. Whether the trial court lacks jurisdiction over petitioners person due to
improper service of summons.
2. Whether the trial court erred in failing to furnish petitioner with copies of its
orders and processes including the September 11, 2003 order and preference for
technicality rather than justice and equity.
In particular, he claims that the rule on service by publication under Section
14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in
personam like a complaint for a sum of money. He also contends that the
affidavit of service of a copy of the summons should have been prepared by the
clerk of court, not respondents messenger.

Held 1: Propreity of Service By Publication

Section 14, Rule 14 (on Summons) of the Rules of Court provides:
SEC. 14. Service upon defendant whose identity or whereabouts are unknown.
In any action where the defendant is designated as an unknown owner, or the
like, or whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such places and for
such times as the court may order. (emphasis supplied)
Since petitioner could not be personally served with summons despite diligent
efforts to locate his whereabouts, respondent sought and was granted leave of
court to effect service of summons upon him by publication in a newspaper of
general circulation. Thus, petitioner was properly served with summons by
publication.
Petitioner invokes the distinction between an action in rem and an action
in personam and claims that substituted service may be availed of only in an
action in rem. Petitioner is wrong. The in rem/in personam distinction was
significant under the old rule because it was silent as to the kind of action to
which the rule was applicable. Because of this silence, the Court limited the
application of the old rule to in rem actions only.
This has been changed. The present rule expressly states that it applies
[i]n any action where the defendant is designated as an unknown owner,
or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now applies to any action, whether in
personam, in rem or quasi in rem.
Regarding the matter of the affidavit of service, the relevant portion of Section 19,
Rule 14 of the Rules of Court simply speaks of the following:
an affidavit showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address.
Service of summons by publication is proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor, business or advertising manager of the
newspaper which published the summons. The service of summons by
publication is complemented by service of summons by registered mail to the
defendants last known address. This complementary service is evidenced by an
affidavit showing the deposit of a copy of the summons and order for publication
in the post office, postage prepaid, directed to the defendant by registered mail to
his last known address.
The rules, however, do not require that the affidavit of complementary service be
executed by the clerk of court. While the trial court ordinarily does the mailing of
copies of its orders and processes, the duty to make the complementary service
by registered mail is imposed on the party who resorts to service by publication.

Moreover, even assuming that the service of summons was defective, the trial
court acquired jurisdiction over the person of petitioner by his own
voluntary appearance in the action against him. In this connection, Section 20,
Rule 14 of the Rules of Court states:
SEC. 20. Voluntary appearance. The defendants voluntary appearance in
the action shall be equivalent to service of summons. The inclusion in a
motion to dismiss of other grounds aside from lack of jurisdiction over the person
of the defendant shall not be deemed a voluntary appearance. (emphasis
supplied)
Petitioner voluntarily appeared in the action when he filed the Omnibus
Motion for Reconsideration and to Admit Attached Answer. This was equivalent
to service of summons and vested the trial court with jurisdiction over the person
of petitioner.
Held 2: Entitlement to Notice of Proceedings
The trial court allowed respondent to present its evidence ex parte on account of
petitioners failure to file his answer within the prescribed period. Petitioner
assails this action on the part of the trial court as well as the said courts failure to
furnish him with copies of orders and processes issued in the course of the
proceedings.
The effects of a defendants failure to file an answer within the time allowed
therefor are governed by Sections 3 and 4, Rule 9 (on Effect of Failure to Plead)
of the Rules of Court:
SEC. 3. Default; declaration of. If the defending party fails to answer within
the time allowed therefor, the court shall, upon motion of the claiming party
with notice to the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless
the court in its discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.
SEC. 4. Effect of order of default. A party in default shall be entitled to
notice of subsequent proceedings but not to take part in the trial. (emphasis
supplied)
If the defendant fails to file his answer on time, he may be declared in default
upon motion of the plaintiff with notice to the said defendant. In case he is
declared in default, the court shall proceed to render judgment granting the
plaintiff such relief as his pleading may warrant, unless the court in its discretion
requires the plaintiff to submit evidence. The defaulting defendant may not take
part in the trial but shall be entitled to notice of subsequent proceedings.
In this case, even petitioner himself does not dispute that he failed to file his
answer on time. That was in fact why he had to file an Omnibus Motion for
Reconsideration and to Admit Attached Answer. But respondent moved only
for the ex parte presentation of evidence, not for the declaration of petitioner in
default. The September 11, 2003 order did not limit itself to permitting respondent

to present its evidence ex parte but in effect issued an order of default. But the
trial court could not validly do that as an order of default can be made only upon
motion of the claiming party. Since no motion to declare petitioner in default was
filed, no default order should have been issued.
To pursue the matter to its logical conclusion, if a party declared in default is
entitled to notice of subsequent proceedings, all the more should a party who has
not been declared in default be entitled to such notice. But what happens if the
residence or whereabouts of the defending party is not known or he cannot be
located? In such a case, there is obviously no way notice can be sent to him and
the notice requirement cannot apply to him. The law does not require that the
impossible be done. Nemo tenetur ad impossibile. The law obliges no one to
perform an impossibility. Laws and rules must be interpreted in a way that they
are in accordance with logic, common sense, reason and practicality.
Hence, even if petitioner was not validly declared in default, he could not
reasonably demand that copies of orders and processes be furnished him. Be
that as it may, a copy of the September 11, 2003 order was nonetheless still
mailed to petitioner at his last known address but it was unclaimed.

Wong subsequently filed with the RTC, by registered mail sent on 5 October
2007, a Manifestation11 claiming that he did not receive any summons from said
court. Wong, by special appearance of counsel, then filed with the RTC on 22
October 2007 a Motion to Dismiss, asserting, among other grounds, that there
was no service of summons upon him, hence, the RTC did not acquire
jurisdiction over his person; and that he was not given the opportunity to oppose
Koyamas Motion to have him declared in default. The Court of Appeals also
dismissed his petition for Certiorari. In the meantime the RTC continued hearing
the said case. In an Order29, the RTC motu proprio allowed Wong to crossexamine Koyama during the hearing on 23 January 2009, even though it did not
lift its 25 September 2007 Order, which had declared him in default. Wong avers
herein that the RTC did not acquire jurisdiction over his person since he was not
served the summons.
ISSUES:
1. Was the substituted service of summons properly resorted to by the Sheriff?
2. Did the court acquired jurisdiction over the person of the defendant?

Held 3: Correctness of Non-Admission of Answer

RULING:

Petitioner failed to file his answer within the required period. Indeed, he would not
have moved for the admission of his answer had he filed it on time. Considering
that the answer was belatedly filed, the trial court did not abuse its discretion in
denying its admission.

1. The Court, after a careful study of Sheriff Baloloys Return, finds that he
improperly resorted to substituted service upon Wong of the summons .Evidently,
the Return failed to relay if sufficient efforts were exerted by Sheriff Baloloy to
locate Wong, as well as the impossibility of personal service of summons upon
Wong within a reasonable time. Sheriff Baloloys three visits to Wongs residence
hardly constitute effort on his part to locate Wong; and Wongs absence from his
residence during Sheriff Baloloys visits, since Wong was at the office or out-oftown, does not connote impossibility of personal service of summons upon him. It
must be stressed that, before resorting to substituted service, a sheriff is enjoined
to try his best efforts to accomplish personal service on the defendant. And since
the defendant is expected to try to avoid and evade service of summons, the
sheriff must be resourceful, persevering, canny, and diligent in serving the
process on the defendant.43

Petitioners plea for equity must fail in the face of the clear and express language
of the rules of procedure and of the September 11, 2003 order regarding the
period for filing the answer. Equity is available only in the absence of law, not as
its replacement. Equity may be applied only in the absence of rules of procedure,
never in contravention thereof.
WHEREFORE, the petition is hereby DENIED.
11. ALEXANDER TAM WONG vs CATHERINE FACTOR-KOYAMA
FACTS: The present controversy originates from a Complaint, for specific
performance, sum of money, and damages, filed against Wong. On 24 July 2007,
the RTC issued summons6 addressed to Wong at his residence. However, the
original summons and the accompanying copy of the Complaint and its Annexes
were eventually returned to the RTC by Sheriff Baloloy who indicated in his
Sheriffs Return dated 14 August 2007 that said court process should already be
deemed "DULY SERVED." According to his Return,7 Sheriff Baloloy had
repeatedly attempted to serve the summons at Wongs residential address on 27
July 2007, 8 August 2007, and 10 August 2007, but Wong was always not around
according to the latters housemaids, Sandoval and Lopez. Sheriff Baloloy then
attempted to leave the summons with Mira, Wongs caretaker, who is of legal
age, and residing at the same address for two and a half years, but Mira refused
to acknowledge or receive the same. On 25 September 2007, after the lapse of
the 15-day reglementary period8 without Wong filing an answer, the RTC, issued
an Order10 declaring Wong in default.

2. Nevertheless, even without valid service of summons, a court may still acquire
jurisdiction over the person of the defendant, if the latter voluntarily appears
before it. Section 20, Rule 14 of the Revised Rules of Court recognizes that:
Section 20. Voluntary Appearance.The defendants voluntary appearance in
the action shall be equivalent to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (Emphasis ours.)
The RTC acquired jurisdiction over Wong by virtue of his voluntary appearance
before it. The Court is not referring to Wongs filing of his Motion to Dismiss the
Complaint, on the ground of lack of jurisdiction of the RTC over his person,
because that clearly does not constitute voluntary appearance. The Court,
instead, calls attention to the RTC Order allowing Wong to cross-examine
Koyama. Wong, through his counsel, took advantage of the opportunity opened
to him by the said Order and aggressively questioned her during the 23 January

2009 hearing, despite his knowledge that the RTC had not yet lifted the 25
September 2007 Order declaring him in default. By actively participating in the 23
January 2009 hearing, he effectively acknowledged full control of the RTC over
Civil Case No. C-21860 and over his person as the defendant therein; he is, thus,
deemed to have voluntarily submitted himself to the jurisdiction of said trial court.
12. NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED vs LEPANTO
CONSOLIDATED MINING COMPANY
G.R. No. 175799; November 28, 2011
FACTS:
On August 30, 2005, Lepanto Consolidated Mining Company filed with the Regional
Trial Court of Makati City a Complaint against NM Rothschild & Sons (Australia)
Limited praying for a judgment declaring the loan and hedging contracts between the
parties void for being contrary to Article 2018 of the Civil Code of the Philippines and
for damages.
Upon respondents motion, the trial court authorized respondents counsel to
personally bring the summons and Complaint to the Philippine Consulate General in
Sydney, Australia for the latter office to effect service of summons on petitioner.
On October 20, 2005, petitioner filed a Special Appearance With Motion to Dismiss
praying for the dismissal of the Complaint on the grounds that the court has not
acquired jurisdiction over the person of petitioner due to the defective and improper
service of summons; the Complaint failed to state a cause of action; respondent does
not have any against petitioner; and other grounds.
On December 9, 2005, the trial court issued an Order denying the Motion to Dismiss
providing that there was a proper service of summons through the Department of
Foreign Affairs on account of the fact that the defendant has neither applied for a
license to do business in the Philippines, nor filed with the Securities and Exchange
Commission a Written Power of Attorney designating some person on whom
summons and other legal processes maybe served. The trial court also held that the
Complaint sufficiently stated a cause of action. The other allegations in the Motion to
Dismiss were brushed aside as matters of defense which can best be ventilated
during the trial.
On April 3, 2006, petitioner sought redress via a Petition for Certiorari with the Court
of Appeals, alleging that the trial court committed grave abuse of discretion in denying
its Motion to Dismiss.

Dismiss on account of its failure to acquire jurisdiction over the person of the
defendant.
HELD:
Petitioner alleges that the RTC has not acquired jurisdiction over its person on
account of the improper service of summons. Summons was served on petitioner
through the DFA, with respondents counsel personally bringing the summons and
Complaint to the Philippine Consulate General in Sydney, Australia.
Respondent argues that extraterritorial service of summons upon foreign private
juridical entities is not proscribed under the Rules of Court.
Section 15, Rule 14, however, is the specific provision dealing precisely with the
service of summons on a defendant which does not reside and is not found in the
Philippines.
Breaking down Section 15, Rule 14, it is apparent that there are only four instances
wherein a defendant who is a non-resident and is not found in the country may be
served with summons by extraterritorial service, to wit: (1) when the action affects the
personal status of the plaintiffs; (2) when the action relates to, or the subject of which
is property, within the Philippines, in which the defendant claims a lien or an interest,
actual or contingent; (3) when the relief demanded in such action consists, wholly or
in part, in excluding the defendant from any interest in property located in the
Philippines; and (4) when the defendant non-resident's property has been attached
within the Philippines. In these instances, service of summons may be effected by (a)
personal service out of the country, with leave of court; (b) publication, also with leave
of court; or (c) any other manner the court may deem sufficient.
Undoubtedly, extraterritorial service of summons applies only where the action is in
rem or quasi in rem, but not if an action is in personam. . On the other hand, when
the defendant or respondent does not reside and is not found in the Philippines, and
the action involved is in personam, Philippine courts cannot try any case against him
because of the impossibility of acquiring jurisdiction over his person unless he
voluntarily appears in court
It is likewise settled that an action in personam is lodged against a person based on
personal liability; an action in rem is directed against the thing itself instead of the
person; while an action quasi in rem names a person as defendant, but its object is to
subject that persons interest in a property to a corresponding lien or obligation.

Hence, petitioner filed the present petition assailing the Decision and Resolution of
the Court of Appeals.

The Complaint in the case at bar is an action to declare the loan and Hedging
Contracts between the parties void with a prayer for damages. It is a suit in which the
plaintiff seeks to be freed from its obligations to the defendant under a contract and to
hold said defendant pecuniarily liable to the plaintiff for entering into such contract. It
is therefore an action in personam, unless and until the plaintiff attaches a property
within the Philippines belonging to the defendant, in which case the action will be
converted to one quasi in rem.

ISSUE: Whether or not the RTC is considered to have committed grave abuse of
discretion amounting to lack or excess of jurisdiction in the denial of the Motion to

Since the action involved in the case at bar is in personam and since the defendant,
petitioner Rothschild/Investec, does not reside and is not found in the Philippines, the

On September 8, 2006, the Court of Appeals rendered the assailed Decision

dismissing the Petition for Certiorari.

Philippine courts cannot try any case against it because of the impossibility of
acquiring jurisdiction over its person unless it voluntarily appears in court
In this regard, respondent vigorously argues that petitioner should be held to have
voluntarily appeared before the trial court when it prayed for, and was actually
afforded, specific reliefs from the trial court.

Petitioner-defendant filed his Answer with Special Defenses and Counterclaim, after
which, trial ensued. On January 31, 1978, the Trial Court rendered judgment against
petitioner, ordering him to pay private respondents P30,000.00, as moral and
exemplary damages, P20,000.00, as actual damages, P5,000.00, as attorney's fees,
and the costs of suit.

Consequently, the trial court cannot be considered to have committed grave abuse of
discretion amounting to lack or excess of jurisdiction in the denial of the Motion to
Dismiss on account of failure to acquire jurisdiction over the person of the defendant.

Copy of the Decision was received by petitioner-defendant on February 10, 1978. He

filed, on March 2, 1978, a Notice of appeal, and on March 7, 1978, a Cash Appeal
Bond and Motion for Extension of twenty days from March 13, 1978 (or until April 2,
1978) within which to file his Record on Appeal. Said Motion was not acted upon by
the Trial Court. On March 30, 1978, or within the extended period prayed for,
petitioner submitted his Record on Appeal. On the same date, respondents filed a
Motion for the Issuance of Writ of Execution alleging that the Decision had already
become final and executory as petitioner's Motion for extension of time to file Record
on Appeal failed to comply with the requirements of the Rules of Court on Motions,
and therefore, did not toll the running of the period to perfect an appeal.

Petition is DENIED

On April 24, 1978, the trial Court disapproved petitioner's Record on Appeal, stating:

Rule 15 Motions

The records show that on March 7, 1978, defendant filed a MOTION FOR
EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since said motion did not
contain any notice of hearing, the COURT did not act on it. The reglementary period
expired on March 13, without any extension granted to defendant. It is rather, too
presumptuous, on the part of the defendant to assume that the Court would grant the
extension just because he prayed for it.

The Court therefore rule that petitioner, by seeking affirmative reliefs from the trial
court, is deemed to have voluntarily submitted to the jurisdiction of said court. A party
cannot invoke the jurisdiction of a court to secure affirmative relief against his
opponent and after obtaining or failing to obtain such relief, repudiate or question that
same jurisdiction

1. Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-51458 July 19, 1982
MANUEL YAP, petitioner,
vs.
HON. COURT OF APPEALS, RAYMOND AND LYDIA TOMASSI, respondents.
Francisco E.F. Remotigue and Francis M. Zosa for petitioner.

IN VIEW OF THE FOREGOING, the approval of defendant's RECORD ON APPEAL

is hereby denied for having been filed out of time.
Petitioner moved to reconsider the said Order, but reconsideration was denied by the
Trial Court, Petitioner then filed with the Court of Appeals a Petition for "Certiorari and
Mandamus" docketed as CA-G.R. No. 07966-SP, praying that the Trial Court be
ordered to approve his Record on Appeal and give due course thereto.

Ernesto F. Carreon for respondents.

On May 22, 1979, the Court of Appeals dismissed the Petition ruling that the Trial
Court did not commit grave abuse of discretion in disapproving the Record on Appeal
as the same was filed beyond the prescribed period.

MELENCIO-HERRERA, J.:

Reconsideration of the Decision was sought by petitioner but respondent Court

denied the same for lack of merit.

Petitioner herein seeks to set aside respondent Court of Appeals 1 Decision of May
22, 1979 and its Resolution of July 26, 1979 in CA-G.R. No. 07966-SP, sustaining the
trial Court's action disapproving petitioner's Record on Appeal for having been filed
out of time.
The antecedent facts follow:
On September 11, 1973, private respondents, spouses Raymond Tomassi and Lydia
Tomassi, filed a complaint for Damages against petitioner Manuel Yap, before the
Court of First Instance of Cebu, Branch XIII, docketed as Civil Case No. R-13571.

Petitioner hied to this Court, with the present Petition for Review on Certiorari, posing
the following queries:
1. Is a motion for extension of time to file record on appeal, a litigated and contentious
motion which requires a notice of hearing before it may be acted upon by the trial
court or is it one that may be heard ex-parte and therefore does not need a notice of
hearing?
2. In disapproving petitioner's record on appeal which was filed within the extended
period prayed for, did the Court of Appeals not depart from the liberal posture adopted

by the Honorable Supreme Court in a long line of eases to disregard technicalities so

that cases may be decided on their merits?
It is not disputed that petitioner's Notice of Appeal, Cash Appeal Bond, and Motion for
Extension to File Record on Appeal were seasonably filed, and that the Record on
Appeal was submitted within the extended period requested. The only issue is
whether the said Motion for extension should mandatorily comply with the
requirements of the Rules on Motions before the same may be acted upon by the trial
Court. Sections 4, 5 and 6 of Rule 15 provide:
Section 4. Notice.-Notice of a motion shag be served by the applicant to all parties
concerned at least three days before the hearing thereof, together with a copy of the
motion, and other papers accompanying it. The Court, however, for good cause may
hear a motion on shorter notice, specially on matters which the Court may dispose of
on its own motion.
Section 5. Contents of Notice.-The notice shall be directed to the parties concerned,
and shall state the time and place for the hearing of the motion.
Section 6. Proof of service to be filed with motion.-No motion shall be acted upon by
the court, without proof of service of the notice hereof, except when the court is
satisfied that the rights of the adverse party or parties are not affected. (Emphasis
supplied)
As a general rule, notice of motion is required where a party has a right to resist the
relief sought by the motion and principles of natural justice demand that his right be
not affected without an opportunity to be heard. 2 The three-day-notice required by
law is intended not for the benefit of the movant but to avoid surprises upon the
adverse party and to give the latter time to study and meet the arguments of the
motion. 3
The Motion in question does not affect the substantive rights of private respondents
as it merely seeks to extend the period to file the Record on Appeal, which extension
may be granted by the Trial Court upon application made prior to the expiration of the
original period. 4 Neither was there any claim that said Motion, which was grounded
on justifiable reason, was interposed to delay the appeal. As early as Moya vs.
Barton, 76 Phil. 831 [1946], this Court held that a Motion requesting an extension
within which to file Record on Appeal may be considered as one which may be
heard ex-parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it was similarly held
that a telegraphic Motion for extension of time to file a Record on Appeal is addressed
to the discretion of the Court, which may act thereon ex-parte. And in the more recent
case of Commercial Union Assurance Company Limited vs. Lepanto Consolidated
Mining Company, 86 SCRA 79, 98 [1978], this Court ruled that the Trial Court has the
power and authority to act on an ex-parte Motion for extension of time to file the
Record on Appeal, which was filed within the original period prescribed by the Rules
since the said Motion did not appear to be a litigated or a contentious Motion and may
be acted upon even without proof of service on adverse party.

recently promulgated by the Supreme Court culminating in Amante v. Sunga, 64

SCRA 192 and Pimentel vs. Court of Appeals, 64 SCRA 475, tend towards liberally
giving every litigant the assistance in obtaining a fair, expeditious and reasonable
determination of his rights as he seeks recourse to the court of law for justice without
technicalities and without strict adherence to the letter of the Rules, thereby
promoting their objective. ...
Accordingly, we find for petitioner. Dismissal of appeals on purely technical grounds is
frowned upon as the policy of the Court is to encourage the hearing of appeals on the
merits. 5 Litigants should be afforded every opportunity to establish the merits of their
cases without the constraints of technicalities. 6
WHEREFORE, the Petition is granted. The questioned Decision and Resolution of
respondent Court of Appeals dated May 22, 1979 and July 26, 1979, respectively, are
hereby annulled and set aside. The Court of First Instance of Cebu, Branch XIII, is
hereby directed to approve petitioner's Record on Appeal and to elevate the same to
the Court of Appeals.
No costs.
SO ORDERED.
2. Azajar vs. CA Nov. 10, 1986
FACTS:
1.

Azajar purchased thru the agent of Cham Samco 100 kegs of nails of
various sizes and paid P18,000 in full. However, Cham Samco only
delivered a part of the quantity ordered. Azajar filed a complaint before the
CFI of Cam Sur.

2.

Instead of submitting an answer, Samco filed a motion to dismiss on two

grounds: failure of the complaint to state a cause of action and that venue
was improperly laid.

3.

The motion to dismiss contained a notice addressed to the Clerk of Court.

4.

Contending that such notice was fatally defective, Azajar filed a motion to
declare Samco in default, which the court granted. Azajar was allowed to
present evidence ex parte and the court rendered judgment against Samco.

5.

The TC justified its order of default in this wise: that instead of filling an
answer to the complaint, Samco filed a motion to dismiss which is not a
motion at all because the notice is directed to the Clerk of Court instead of
the party concerned (as required by Sec.5, Rule 15, RC) and is without the
requisite notice of hearing directed to the CC and not to the parties, and
merely stating that the same be submitted for resolution. It is without the
requisite notice of time and place of hearing.

6.

Aggrieved, Samco went to CA for recourse, but the CA affirmed the decision
of the TC. However, on motion for reconsideration, CA reversed itself and

In the same case, this Court held:

... While the earlier cases pertinent to the issue command mandatory compliance with
Sections 4, 5 and 6 of Rule 15 of the Rules of Court, the weight of the authorities

declared that technicalities should be brushed aside so that Samco can be

given a day in court.
ISSUE: WON the failure of Cham Samco to set its motion to dismiss for hearing on a
specified date and time and for not addressing the same to the party interested is
fatal to his cause.

HELD: Yes. Although the Court sided with CA that technicalities should be set aside
to Samco to be afforded with his day in court.

opposed the motion.Judge Calderon-Bargas issued an Order stating that Record

shows that the Urgent Ex-Parte Motion to Recall Compromise Agreement and Motion
to Approve Compromise Agreement both failed to comply with Sec[s]. 4 and 5, Rule
15 of the Civil Procedure. Both proceedings have no specific date of hearing. The
reason why the Motion to Approve Compromise Agreement up to now has not yet
been acted upon was that it has no date of hearing.Thus, these are considered mere
scrap[s] of paper. The TC approved the Compromise Agreement. Angeles then
moved for the issuance of a writ of execution. The TC required petitioner to comment
on the motion within ten (10) days.TC directed the Clerk of Court to issue a writ of
execution. On the same date, the trial court received petitioners Motion for Extension
of Time to File Comment with Entry of Appearance which was denied on October 10,
2002. Petitioner then moved for reconsideration of the October 3, 2002
Order.Petitioner came to the Court of Appeals via petition for certiorari. The CA
denied the petition and ruled that petitioner was not deprived of due process when the
trial court issued the October 3, 2002 and the October 10, 2002 Orders since it was
given sufficient time to file its comment. The appellate court did not rule on the
second and third issues after noting that petitioners motion for reconsideration of the
October 3, 2002 Order had not yet been resolved by the trial court. It did not resolve
the issues even after the trial court denied petitioners motion for reconsideration on
December 12, 2003,11 ratiocinating that the trial courts denial of petitioners motion
for reconsideration did not operate to reinstate the petition because at the time it was
filed, petitioner had no cause of action.Hence , this petition.

1.

The law explicitly requires that notice of motion shall be served by the
appellant to all parties concerned at least 3 days before the hearing,
together with a copy of the motion, and of any affidavits and other papers
accompanying it; and that notices shall be directed to the parties concerned
stating the time and place for the hearing of the motion. Failure to comply
with the requirement is a fatal flaw.

2.

Such notice is required to avoid surprises upon the opposite party and give
the latter time to study and meet the arguments of the motion as well as to
determine or make determinable the time of submission of the motion for
resolution.

3.

Without the notice, the occasion would not arise to determine with
reasonable certitude whether and within what time the adverse party would
respond to the motion, and when the motion might already be resolved by
the Court.

ISSUES: WON the trial court seriously erred: (1) in issuing the October 3, 2002 and
the October 10, 2002 Orders without awaiting petitioners comment; (2) in granting
the Motion for Issuance of Writ of Execution although it lacked the requisite notice of
hearing; and (3) in issuing the writ of execution since it varied the tenor of the
decision dated June 28, 2002.

4.

The duty to give that notice is imposed on the movant and not on the court.

HELD:

3. G.R. No. 163785

December 27, 2007

KKK FOUNDATIONVS. HON. ADELINA CALDERON-BARGAS

FACTS:On March 1, 2002, petitioner, filed a complaint for Annulment of Extra-judicial
Foreclosure of Real Estate Mortgage and/or Nullification of Sheriffs Auction Sale and
Damages with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction.3
Petitioner alleged that: (1) the auction sale was made with fraud and/or bad faith
since there was no public bidding; (2) the sheriff did not post the requisite Notice of
Sheriffs Sale; (3) the petition for extrajudicial foreclosure was fatally defective since it
sought to foreclose properties of two different entities; (4) the foreclosed properties
were awarded and sold to Imelda A. Angeles for an inadequate bid of only
P4,181,450; and (5) the auction sale involved eight parcels of land covered by
individual titles but the same were sold en masse. On March 7, 2002, Judge
Calderon-Bargas issued TRO preventing Angeles from consolidating her ownership to
the foreclosed properties. On even date, petitioner and Angeles executed a
Compromise Agreement wherein petitioner agreed to pay Angeles the bid price of the
eight parcels of land within 20 days. The parties then filed a Motion to Approve
Compromise Agreement.On April 1, 2002, petitioner filed an Urgent Ex-Parte Motion
to Recall Compromise Agreement since the other property owner and other trustees
of petitioner were not consulted prior to the signing of the agreement. Angeles

On the first issue, we note that in its September 9, 2002 Order, the trial court gave
petitioner ten (10) days to file its comment to Angeless Motion for Issuance of Writ of
Execution. While petitioner claims that it received the Order only on September 21,
2002, Angeles counters that petitioner received it on September 12, 2002. We are
more inclined to believe Angeless allegation since the trial court itself declared in its
Order dated October 10, 2002 that the Order dated September 9, 2002 was
personally served upon petitioner on September 12, 2002.13 Thus, petitioner had
until September 22, 2002 within which to file its comment or to request for an
extension of time. Consequently, petitioners motion for extension and comment were
not seasonably filed and such procedural lapse binds petitioner.
Anent the second issue, a motion which does not meet the requirements of Sections
4 and 5 of Rule 1514 of the Rules of Court is considered a worthless piece of paper,
which the Clerk of Court has no right to receive and the trial court has no authority to
act upon. Service of a copy of a motion containing a notice of the time and the place
of hearing of that motion is a mandatory requirement, and the failure of movants to
comply with these requirements renders their motions fatally defective. However,
there are exceptions to the strict application of this rule. These exceptions are: (1)
where a rigid application will result in a manifest failure or miscarriage of justice
especially if a party successfully shows that the alleged defect in the questioned final
and executory judgment is not apparent on its face or from the recitals contained

therein; (2) where the interest of substantial justice will be served; (3) where the
resolution of the motion is addressed solely to the sound and judicious discretion of
the court; and (4) where the injustice to the adverse party is not commensurate with
the degree of his thoughtlessness in not complying with the procedure prescribed.A
notice of hearing is an integral component of procedural due process to afford the
adverse parties a chance to be heard before a motion is resolved by the court.
Through such notice, the adverse party is given time to study and answer the
arguments in the motion. Records show that while Angeless Motion for Issuance of
Writ of Execution contained a notice of hearing, it did not particularly state the date
and time of the hearing. However, scstill find that petitioner was not denied
procedural due process. Upon receiving the Motion for Issuance of Writ of
Execution, the trial court issued an Order dated September 9, 2002 giving petitioner
ten (10) days to file its comment. The trial court ruled on the motion only after the
reglementary period to file comment lapsed. Clearly, petitioner was given time to
study and comment on the motion for which reason, the very purpose of a notice of
hearing had been achieved.Procedural due process is not based solely on a
mechanical and literal application that renders any deviation inexorably fatal. Instead,
procedural rules are liberally construed to promote their objective and to assist in
obtaining a just, speedy and inexpensive determination of any action and proceeding.

SC ordered that the case be REMANDED to the Regional Trial Court of Morong,
Rizal, Branch 78, which is hereby ORDERED to issue another writ of execution
against petitioner KKK Foundation, Inc., in conformity with the Decision dated June
28, 2002 of the trial court. This is without prejudice to filing a new motion for
consolidation by respondent Angeles.

On the last issue, SC note that the Compromise Agreement approved by the trial
court in its Decision dated June 28, 2002 merely provided that petitioner would pay
Angeles the bid price of P5,500,000, for the eight parcels of land subject of the
auction sale, within twenty (20) days. Upon payment, Angeles would execute a
Certificate of Deed of Redemption and a Deed of Cancellation of Mortgage, and
surrender to petitioner the titles to the eight parcels of land. Nevertheless, when the
trial court issued the writ of execution, the writ gave Sheriff Bisnar the option "to allow
the consolidation of the subject real properties in favor of the defendant Imelda
Angeles."

FACTS: June 8, 1964: Jose Santos filed a complaint against Lorenzo Liwag with the
CFI of Manila, which seeks to annul certain documents which were alleged to be
done with malice, threats, false pretenses, machination, misrepresentations, and
other fraudulent means, with damages and costs.

Undoubtedly, the writ of execution imposed upon petitioner an alternative obligation

which was not included or contemplated in the Compromise Agreement. While the
complaint originally sought to restrain Angeles from consolidating her ownership to
the foreclosed properties, that has been superseded by the Compromise Agreement.
Therefore, the writ of execution which directed Sheriff Bisnar to "cause the Register of
Deeds of Morong, Rizal, to allow the consolidation of the subject real properties in
favor of the defendant Imelda Angeles" is clearly erroneous because the judgment
under execution failed to provide for consolidation. Because the writ of execution
varied the terms of the judgment and exceeded them, it had no validity. The writ of
execution must conform to the judgment which is to be executed, as it may not vary
the terms of the judgment it seeks to enforce. Neither may it go beyond the terms of
the judgment sought to be executed. Where the execution is not in harmony with the
judgment which gives it life and exceeds it, it has pro tanto no validity.20

Liwag opposed the said motion and said that the allegations in the complaint filed
are sufficient and contains the facts needed for a cause of action to exist and Santos
motion is indeed evidentiary in nature Trial Court

WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision dated

November 28, 2003 and the Resolution dated May 26, 2004 of the Court of Appeals
in CA-G.R. SP No. 73965 are MODIFIED such that the writ of execution issued on
October 11, 2002 by Judge Adelina Calderon-Bargas is declared NULL and VOID.

Rule 12 Motions for Bill of Particulars

1. SANTOS V. LIWAG (G.R. No. L-24238 November 28, 1980)
DOCTRINE: The allowance of a motion for a more definite statement or bill of
particulars rests within the sound judicial discretion of the court and, as usual in
matters of a discretionary nature, the ruling of the trial court in that regard will not be
reversed unless there has been a palpable abuse of discretion or a clearly erroneous
order. EMERGENCY RECIT (Very short case please refer to the facts below)

July 4, 1964: Santos filed a motion asking the court to order Liwag (petitioner) to
submit bill of particulars on certain allegations of the complaint believed to be vague
and conflicting, and that he be informed of the charges filed against him to prepare an
intelligent and proper pleading necessary and appropriate in the premises

Granted the motion and directed the plaintiff to submit a bill of particulars with
respect to the paragraphs specified in defendants motion
When plaintiff failed to comply with the order of the court, the complaint was
dismissed with costs against the plaintiff
ISSUE: 1. WON the trial court erred in granting the motion for bill of particulars filed
by Liwag.
HELD/RATIO: 1. NO. BILL OF PARTICULARS ARE DISCRETIONARY UPON THE
COURTS o The allowance of a motion for a more definite statement or bill of
particulars rests within the sound judicial discretion of the court and, as usual in
matters of a discretionary nature, the ruling of the trial court in that regard will not be
reversed unless there has been a palpable abuse of discretion or a clearly erroneous
order. o Complaint was indeed drawn and suffers from vagueness and generalization
to enable the defendant properly to prepare a responsive pleading and to clarify
issues and aid the court in an orderly and expeditious disposition in the case.

 RULES ON BILL OF PARTICULARS ON THE GROUND OF VAGUE COMPLAINT

o If an action (like this case) is one for the annulment of documents that have been
allegedly executed by reason of deceit, machination, false pretenses,
misrepresentation, threats, and other fraudulent means. o Deceit, machination, false
pretenses, misrepresentation, and threats, however, are largely conclusions of law
and mere allegations thereof without a statement of the facts to which such terms
have reference are not sufficient. The allegations must state the facts and
circumstances from which the fraud, deceit, machination, false pretenses,
misrepresentation, and threats may be inferred as conclusions. In his complaint, the
appellant merely averred that all the documents sought to be annulled were all
executed through the use of deceits, machination, false pretenses,
misrepresentations, threats, and other fraudulent means without the particular-facts
on which alleged fraud, deceit, machination, or misrepresentations are predicated.

particulars had not yet been resolved. The motion to cancel was set for
hearing on October 26, 1957. When defendants arrived in court on that day
they learned that an order of default had been issued, so they immediately
filed a motion asking that the same be set aside that their pending motion for
a bill of particulars be resolved and that they be given a reasonable period
thereafter within which to file their answer to the complaint.
5.

On December 13, 1957 the court denied the motion and rendered its
decision in favor of plaintiffs and against defendants.

6.

On January 4, 1958 it denied defendants' motion for reconsideration of the

order of denial. On January 24, defendants filed their record on appeal (to
this Court from the order of December 13, 1957), but as they subsequently
filed a petition for relief from the judgment by default, they asked that
consideration and approval of their record on appeal be held in abeyance
until said petition had been resolved. The request was granted. Defendant's
petition for relief, which was filed on January 28, 1958, was denied on March
21, as was also, on September 20, 1958 their motion for reconsideration of
the order of denial.

7.

On October 4, 1958 the court denied likewise their motion for a writ of
preliminary injunction to restrain execution of the judgment by default.
Hence, this appeal.

FAILURE TO COMPLY WITH A COURT ORDER TO FILE OF A BILL OF

PARTICULARS RESULTS IN DISMISSAL OF COMPLAINT o Hence, it was proper
for the trial court to grant the defendant's motion for a bill of particulars, and when the
plaintiff failed to comply with the order, the trial court correctly dismissed the
complaint.
2. FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her
husband ULPIANO PASION,
assisted by her husband JUAN PASCUAL vs. BRUNO MERCADO and ANTONIO
DASALLA
Facts:
1.

2.

3.

4.

On November 25, 1956 plaintiffs filed this action to recover portions of a

parcel of land in Isabela, and damages. Under date of December 4, 1956
defendants filed a motion for a bill of particulars, with notice of hearing on
December 8, but since the motion was actually received in court only on
December 12 the court set it for hearing on December 22.
On December 17, however, defendants filed a motion to dismiss the
complaint, with a prayer that consideration of their motion for a bill of
particulars be held in abeyance pending resolution of their motion to dismiss.
On December 22, 1956, the date set by the court for the hearing of the
motion for a bill of particulars and by defendants for the hearing of their
motion to dismiss, the court issued an order postponing "consideration" of
both motions to December 29.
On March 7, 1957 the court denied the motion to dismiss and ordered
defendants "to answer the complaint within the reglementary period provided
for by the Rules of Court." Hearing of the case on the merits was set for
October 29, 1957, notice of which was duly received by defendants.
Defendants not having filed their answer, plaintiffs, on October 17, 1957,
moved to have them declared in default. On the same day the court issued
the order of default together with another order commissioning the clerk of
court to receive plaintiff's evidence.
On October 21, 1957 defendants moved to cancel the hearing scheduled for
October 29, on two grounds one of which was that their motion for a bill of

Issue: Whether or not upon denial of a defendants' motion to dismiss the

reglementary period within which to file an answer resumes running even though the
motion for a bill of particulars of the same defendants is still pending and unresolved.
Held:
Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file
a responsive pleading. In the case of a motion to dismiss, the period starts running
against as soon as the movant receives a copy of the order of denial. In the case
of a motion for a bill of particulars, the suspended period shall continue to run upon
service on the movant of the bill of particulars, if the motion is granted, or of the notice
of its denial, but in any event he shall have not less than five days within which to file
his responsive pleading.
When appellants filed a motion to dismiss they requested that resolution of their
previous motion for a bill of particulars be held in abeyance. This was but practical
because if the court had granted the motion to dismiss, there would have been no
need for a bill of particulars. Resolution of the motion for the purpose was necessary
only in the event that court should deny, as it did, the motion to dismiss, in which case
the period to file an answer remained suspended until the motion for a bill of
particulars is denied or, if it is granted, until the bill is served on the moving party.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of facts.

No action having been taken thereon until the present, the period to answer has
not yet expired. The lower court, therefore, erred in declaring appellants in
defaults and in taking all the subsequent actions it did in the case.
The order of default issued and the decision rendered by the trial court are set aside
and the case is remanded for further proceedings, pursuant to the Rules.

3. Salita vs Magtolis
Facts:
1. Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic C
hurch in Ermita, Manila.
2. They separated in fact in 1988. Subsequently, Erwin sued for annulment on the gro
und of Joselitas psychological incapacity.
3. The petition for annulment was filed before the Regional Trial Court of Quezo
n City. Therein it is alleged that petitioner came to realize that respondent was p
sychologically incapacitated to comply with the essential marital obligations of
their marriage, which incapacity existed at the time of the marriage although th
e same became manifest only thereafter."Edwin specified that at the time of the
ir marriage, respondent (Joselita Salita) was psychologically incapacitated to c
omply with the essential marital obligations of their marriage in that she was un
able 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, wh
ose intervention caused petitioner to lose his job.
4. Dissatisfied with the allegation in the petition, Joselita moved for a bill of part
iculars. 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 ultima
te 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 adequ
ate, the trial court issued an order upholding its sufficiency and directing Joseli
ta to file her responsive pleading.
5. She filed a petition for certiorari before the Supreme Court but the SC referred it to
the CA. The CA denied her petition.

Issue: WON the Bill of Particulars submitted by herein respondent is of sufficient defi
niteness or particularity as to enable herein petitioner to properly prepare her responsi
ve pleading or for trial.
Held: Yes. A complaint only needs to state the "ultimate facts constituting the pl
aintiffs 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 responde
nt, "[t]he term does not refer to the details of probative matter or particulars of evidenc
e 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 pro
ve the existence of those facts." And a motion for bill of particulars will not be gra
nted if the complaint, while not very definite, nonetheless already states a suffic
ient 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 informatio
n 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 f
rom private respondent would be to ask for information on evidentiary matters. Indee
d, petitioner has already been adequately apprised of private respondents cause of a
ction against her thus
. . . . (she) was psychologically incapacitated to comply with the essential marital oblig
ations of their marriage in that she was unable to understand and accept the demand
s made by his profession that of a newly qualified Doctor of Medicine upon petiti
oners 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 alre
ady prepare her responsive pleading or for trial. Private respondent has already
alleged that "she (petitioner) was unable to understand and accept the demand
s made by his profession . . . upon his time and efforts . . . " Certainly, she can r
espond to this. To demand for more details would indeed be asking for informat
ion 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

RULE 16 Motion to Dismiss

1. Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-45107 November 11, 1991
BENEDICTO RAMOS, petitioner,
vs.
HON. ELVIRO L. PERALTA, Presiding Judge, Branch XVII, Court of First
Instance of Manila, SPOUSES JUVENCIO ORTANEZ and JULIANA S.
ORTANEZ, MINDANAO INSURANCE CO., INC. and P. R. ROMAN,
INC., respondents.
Angel Suntay, Jr. and Renato M. Coronado for petitioner.
Tolentino, Garcia, Cruz & Reyes for respondents Ortanez.
FERNAN, C.J.:p
Put in issue in this petition for review on certiorari is the propriety of the dismissal by
the then Court of First Instance of (CFI) of Manila, Branch XVII of petitioner's action
for consignation of the sum of P70,000.00 representing advance rentals for the 101hectare Salgado fishpond located in Bo. Balut, Pilar, Bataan.
Petitioner started occupying the Salgado fishpond in 1964 by virtue of a lease
contract executed in his favor by private respondents spouses Juvencio and Juliana
Ortanez. The original lease for a term of five (5) years from January 1, 1964 to
January 1, 1990, was renewed several times, the last renewal being on June 28,
1974 under a "Kasunduan sa Pag-upa" for a period of three (3) years starting January
1, 1975 to December 31, 1977.
Unknown to petitioner, title 1 to said property was in the name of Philippine
International Surety Co., Inc., a corporation founded, organized and 99.5%-owned by
the Salgado spouses. Later renamed Mindanao Insurance Co., Inc., 2 said
corporation was placed under receivership and liquidation on June 20, 1968 in Civil
Case No. Q-10664 of the then CFI of Rizal, Branch IV, Quezon City, upon application
of Insurance Commissioner Gregoria Cruz-Ansaldo who was appointed receiver.
Thereafter on February 23, 1976, respondent P. R. Roman, Inc. purchased from
Mindanao Insurance the Salgado fishpond for P950,000.00. The deed of sale was
signed by the receiver and duly approved by the liquidation court.
Apparently due to this development, the spouses Ortanez refused to accept from
petitioner the advance rentals on the fishpond due on March 15, 1976 in the amount
of P30,000.00.

On or about May 1, 1976, petitioner received a letter from Don Pablo R. Roman
informing him of the latter's acquisition of the fishpond and intention to take
possession thereof on May 16, 1976. In his letter-reply, petitioner reminded Mr.
Roman of his lease contract over the fishpond and refused to consent to the intended
take over. Notwithstanding petitioner's objection, P. R. Roman, Inc. took over
possession of the fishpond.
On August 2, 1976, petitioner filed before the CFI of Manila the aforesaid complaint,
docketed as Civil Case No. 103647, 3 against private respondents Juvencio and
Juliana Ortanez, Mindanao Insurance and P. R. Roman, Inc. for consignation of the
sum of P70,000.00 representing advance rentals on the fishpond in the amounts of
P30,000.00 and P40,000.00 respectively due on March 15, 1976 and June 15, 1976,
which he had previously tendered to, but refused by the spouses Ortanez and Pablo
Roman.
P. R. Roman, Inc. filed a motion to dismiss on the grounds that venue was improperly
laid, the complaint states no cause of action and the court has no jurisdiction over the
subject of the action or suit. In its motion to dismiss, P. R. Roman, Inc. cited the
pendency before the then CFI of Bataan of Civil Case No 4102 instituted by P.R.
Roman, Inc. against petitioner Benedicto Ramos on August 13, 1976 to quiet its title
over the Salgado fishpond.
On August 27, 1976, respondent CFI of Manila issued an order 4 dismissing Civil
Case No. 103647, stating in part:
Without discussing in detail the grounds mentioned above, the Court really sees that
this case should be dismissed not only insofar as against P. R. Roman, Inc. but also
as against the other defendants mentioned above for the reason, principally, that
there is already a case pending between the same parties and for the same cause in
Civil Case No. 4102 of Branch II of the Court of First Instance of Bataan, entitled P. R.
Roman, Inc. vs. Benedicto Roman, which is precisely for the ownership of the subject
matter of the property allegedly leased to the plaintiff herein (Exhibit "A"-Motion). In
the said case, the defendant therein, Benedicto Ramos, who is the plaintiff in the case
at bar, filed a motion for leave to file a third-party complaint against the spouses
surnamed Ortanez and the Mindanao Insurance Company Inc. All the issues
respecting the fishpond, including the lease contract, are necessarily involved in the
case pending now in Bataan. Aside from the above, the Court cannot decide this case
because it cannot pre-empt the Court of Bataan on whether or nor the P. R. Roman,
Inc. is already the owner because if it finds that the said defendant P. R. Roman, Inc.
is really the owner of the fishpond, there is no more lease for which rentals are to be
paid.
Petitioner moved for reconsideration, but was unsuccessful, the court a quo, standing
"pat on its previous order and reiterat(ing) its dismissal of the case, without costs." 5
Hence this petition anchored on the following ascribed errors of law: 6

1. The respondent court erred in not holding that the only issue in consignation of
funds is whether the defendant is willing to accept the proffered payment or not.
2. The respondent court erred in not holding that the prerogative of choosing the
proper venue belongs to the plaintiff.
3. The respondent court erred in holding that the subsequent filing of Civil Case No.
4102 before the Court of First Instance of Bataan is a bar to the prosecution of Civil
Case No. 103647 before it.
Petitioner contends that the Bataan quieting-of-title Civil Case No. 4102 cannot serve
as a bar to his Manila consignation Civil Case No. 103647 because they involve
different issues. Civil Case No. 4102 deals with the question of ownership while the
only issue involved in his consignation case is whether or not the defendant is willing
to accept the proffered payment. In fact, petitioner posits, the action to quiet title is a
useless futile exercise as he does not question P. R. Roman Inc.'s ownership of the
fishpond under consideration, but merely wishes to assert his leasehold and
possessory rights over said property under the "Kasunduan sa Pag-upa." He further
contends that compelling him to litigate before the Bataan court would render
nugatory his right as a plaintiff to choose the venue of his action. Besides, Civil Case
No. 103647 was filed on August 2, 1976, ahead of Civil Case No. 4102 which was
filed on a much later date, August 13, 1976, after the Manila CFI had already acquired
jurisdiction over Civil Case No. 103647.
Private respondents counter that the view taken by petitioner of the Manila
consignation case is quite limited and bookish, because while it may be true that
theoretically, the main issue involved in a consignation case is whether or not the
defendant is willing to accept the proffered payment, in the consignation case brought
by petitioner, other issues were pleaded by petitioner himself, such as the validity and
binding effect of the lease contract and the existence of the supposed obligor-obligee
relationship. They further contend that a plaintiffs right of choice of venue is not
absolute, but must invariably how to the dismissal of the case because of litis
pendentia which, in refutation of petitioner's argument, does not require that there is
a prior pending action, merely that there is a pending action.
We find for respondents.
Under the rules and jurisprudence, for litis pendentia to be invoked as a ground for
the dismissal of an action, the concurrence of the following requisites is necessary:
(a) Identity of parties or at least such as represent the same interest in both actions;
(b) Identity of rights asserted and relief prayed for, the relief being founded on the
same facts; and (c) The identity in the two cases should be such that the judgment
that may be rendered in one would, regardless of which party is successful, amount
to res judicata in the other. 7

These requisites are present in the case at bar. It is worthwhile mentioning that in his
basic petition for review, one of the assigned errors of petitioner is that the respondent
court erred in not holding that the parties in Civil Case No. 4102 are not the same as
the parties in Civil Case No. 103647. 8 However, in his brief, no further mention of this
assigned error was made; a clear indication of petitioner's admission of the identity of
parties in Civil Case No. 4102 and Civil Case No. 103647, particularly as he filed a
third party complaint in Civil Case No. 4102 against the spouses Ortanez and
Mindanao Insurance.
Anent the second element, we agree with private respondents' observation that
petitioner's approach to his consignation case is quite constricted. His contention that
the only issue in a consignation case is whether or not the defendant is willing to
accept the proffered payment is true only where there is no controversy with respect
to the obligation sought to be discharged by such payment. His consignation case,
however, is not as simple. While ostensibly, the immediate relief sought for in his
consignation case is to compel therein defendants to accept his advance rentals, the
ultimate purpose of such action is to compel the new owner of the fishpond to
recognize his leasehold rights and right of occupation. In the last analysis, therefore,
the issue involved in Civil Case No. 103647 is the right of possession over the
fishpond intertwined with the validity and effectivity of the lease contract.
This is the same issue involved in Civil Case No. 4102. Although an action for
quieting of title refers to ownership, P. R. Roman, Inc. in its
complaint 9 in Civil Case No. 4102 alleged:
5. There is a cloud on the aforesaid titles of plaintiff on the said agricultural land,
marked Annexes "A", "B" and "C" hereof, as well as on its right of possession over
that real property by reason of a certain "Kasunduan sa Pagupa" (Contract of Lease)
dated June 28, 1974 executed by and between the spouses Jovencio Ortanez and
Juliana S. Ortanez purportedly as "may-ari/Nagpapaupa" (owner/lessor) and the
defendant as lessee, which instrument is apparently valid or effective but in truth and
in fact invalid, ineffective, voidable or unenforceable, and is prejudicial to the said
titles of plaintiff as well as to its right of possession over the same
fishpond/agricultural land in Barrio Balut, Pilar, Bataan.
Thus, while the respondent court in the assailed order of dismissal dated August 27,
1976 described Civil Case No. 4102 as "precisely for the ownership of the subject
matter of the property allegedly leased to the plaintiff herein," 10 its order dated
October 22, 1976 denying petitioner's motion for reconsideration, more perceptively
stated: 11
In Civil Case No. 4102 of the Court of First Instance of Bataan, entitled P. R. Roman,
Inc. vs. Benedicto Ramos one of the principal issues is the possession of the
fishpond subject matter of the lease supposed rents of which are supposed to be
consignated in the instant case, plaintiff P. R. Roman, Inc. there, claiming to be
entitled to the possession of said property as owner under a certificate of title and

defendant Benedicto Ramos, plaintiff here, anchoring his claim of possession upon
his lease with the Ortanez spouses against whom, on his motion, he filed a third party
complaint in which he prayed in the alternative, that should he lose possession of the
fishpond in favor of P. R. Roman, Inc., the Ortanezes should be condemned to
reimburse him the rentals he has already paid for the unexpired portion of the lease.
The issue of whether or not the lease subsists even as regards P. R. Roman, Inc., for
it is the view of Ramos that it bought the property with knowledge of the lease, is
squarely planted in the case before the Court of First Instance of Bataan, and,
consequently, the more appropriate court with which rents are to be consignated. . . .
That whatever decision may be handed down in Civil Case No. 4102 would
constitute res judicata in Civil Case No. 103647 is beyond cavil. Should the Bataan
court rule that the lease contract is valid and effective against P. R. Roman, Inc., the
petitioner can compel it to accept his proffered payment of rentals; otherwise, he may
not do so.
Petitioner next contends that the dismissal of Civil Case No. 103647 deprived him of
his right to choose the venue of his action. Verily, the rules on the venue of personal
actions are laid down generally for the convenience of the plaintiff and his witnesses.
But, as observed by private respondents, this right given to the plaintiff is not
immutable. It must yield to the greater interest of the orderly administration of justice,
which as in this case, may call for the dismissal of an action on the basis of litis
pendentia to obviate the possibility of conflicting decisions being rendered by two
different courts. 12
As private respondents would put it, "(T)he Rules of Court are not perfect. It does not
pretend to be able to make everyone happy simultaneously or consecutively or all the
time. Even the Rules of Court has hierarchy of values; thus, the choice of venue may
bow to dismissal of the case because of litis pendentia. 13 At any rate, petitioner
cannot complain of any inconvenience arising from the dismissal of Civil Case No.
103647. Being the defendant in Civil Case No. 4102, he cannot but litigate before the
Bataan court, and bringing his consignation case before the same court would
actually save him time, effort and litigation expenses.
Finally, the rule on litis pendentia does not require that the later case should yield to
the earlier case. What is required merely is that there be another pending action, not
a prior pending action. Considering the broader scope of inquiry involved in Civil Case
No. 4102 and the location of the property involved, no error was committed by the
lower court in deferring to the Bataan court's jurisdiction.
WHEREFORE, the assailed decision dated August 27, 1976 of the then Court of First
Instance of Manila, Branch XVII, is AFFIRMED in toto. This decision is immediately
executory, with costs against petitioner.
SO ORDERED.

2. Lee Bun Ting and Ang Chia vs. Hon. Jose Aliagen, Rafael Dinglasan
et. al.
Facts: In a previous cases [G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee Bun
Ting, et al.] decided by the SC with the same set of private parties, it was found that
private respondents sold to herein petitioner a parcel of land located in Roxas City,
Capiz through a conditional sale. Lee, the buyer, on the other hand avers that it was
an absolute sale. Both trial court and CA ruled in favor of buyer Lee. The SC found
that Lee is normally not allowed to purchase the property on the count of the
constitutional prohibition (Section 5. Save in cases of hereditary succession, no
private agricultural land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain in
the Philippines.- Article 13, 1935 Consitution) But since it was also found out that the
buyers (private respondents) are in pari delicto for selling the property in spite of the
constitutional prohibition they are proscribed from assailing the sale made between
them and herein private respondents.
12 years after the above mentioned case was promulgated, the present case for the
recovery of the lot was instituted with the same contention of the respondents
Dinglasan that the sale should be null and void on account of the constitutional
prohibition.
A motion to dismiss was filed by petitioners in this case on the ground of res judicata.
An opposition thereto was filed by plaintiffs, with the averment that the decision in the
prior case "cannot be pleaded in bar of the instant action because of new or
additional facts or grounds of recovery and because of change of law or
jurisprudence.
The Court of Appeals denied the motion to dismiss.
Issue: Whether or not the motion to dismiss should be granted
Held: Affirmative. The decision of this Court in G. R. No. L-5996, "Rafael Dinglasan,
et al. vs. Lee Bun Ting, et al." constitutes a bar to Civil Case No. V-3064 before the
respondent court. Said Civil case, therefore, should have been dismissed because it
is a mere relitigation of the same issues previously adjudged with finality, way back in
1956, between the same parties or their privies and concerning the same subject
matter. We have consistently held that the doctrine of res judicata applies where,
between a pending action and one which has been finally and definitely settled, there
is Identity of parties, subject matter and cause of action.
We find that in the ultimate analysis, Civil Case No. V-3064 is but an attempt to
reopen the issues which were resolved in the previous case. Contrary to the
contentions of private respondents, there has been no change in the facts or in the
conditions of the parties. Posterior changes in the doctrine of this Court cannot

retroactively be applied to nullify a prior final ruling in the same proceeding where the
prior adjudication was had, whether the case should be civil or criminal in nature. The
determination of the questions of fact and of law by this Court on June 27, 1956 in
case No. L-5996 has become the law of the case, and may not now be disputed or
relitigated by a reopening of the same questions in a subsequent litigation between
the same parties and their privies the same subject matter.

vs.

3. PHILIPPINE NATIONAL BANK, plaintiff-appellant,

HERMOGENES HIPOLITO and LEONOR JUNSAY, defendantsappellees.
G.R. No. L-16463

FACTS: June 18, 1959 a complaint was filed alleging that defendant Hermogenes
Hipolito and Leonor Junsay obtained various sugar crop loans from plaintiff PNB
through its Victorias Branch, evidenced by promissory notes.
The amount of the notes was a total of P9,692.00. Defendants only paid P3,905.61,
leaving a balance of P6,786.39, which, added to accrued interest of P5,213.34,
summed up to P11,999.73 as of January 17, 1957.
Despite repeated demands, defendants failed and refused to pay said amount. May
7, 1957 - defendants went to Atty. Francis I. Medel of the legal department of plaintiff's
Victorias branch and offered a plan of payment of the account
For reasons unknown to plaintiff and probably due to the transfer of defendant
Hipolito as supervising teacher to some other province, his proposed plan of payment
did not materialize. Said offer of plan of payment was an acknowledgment of
defendants' just and valid obligation. The prayer is for the court to order defendants to
pay to plaintiff the said amount of P11,999.73, with accrued annual interest thereon
( rate of 5% from January 17, 1957 up to the date of payment, plus attorney's fees
equivalent to 10%.)
Defendants moved for a bill of particulars denied. Defendants moved to dismiss on
the ground that plaintiff's cause of action already prescribed. attached to the motion: a
joint affidavit and defendants averred that they never made any acknowledgment of
indebtedness nor offered a plan of payment, but on the contrary had always
maintained that plaintiff's action had prescribed.
Plaintiffs opposition - contending that the prescriptive period had been suspended
by "EO No. 32, known as the Moratorium Law," and interrupted, pursuant to Article
1973 of the old Civil Code, by plaintiffs written extra-judicial demands as well as by
defendants acknowledgment of the indebtedness.

Defendants reply to plaintiff's opposition - citing Bachrach Motors Co., Inc. v.

Chua Tia Hian, stated that EO. No. 32, if at all, suspended the prescriptive period
"only for 2yrs, 4 months and 16 days, from March 10, 1945, or only up to July 26,
1948," - that the alleged written extrajudicial demands constitute self-serving
evidence; and that defendant Hipolitos letter of February 16, 1959 cannot be
considered as an acknowledgment of indebtedness.
Lower court dismissed the complaint: ruled that the 7 promissory notes constituted
1 single obligation, that the last promissory note dated June 23, 1941, should be
considered as the true date of the written contract, from which the 10-year
prescriptive period and such period has been suspended for 2 years, 4 months and
sixteen 16 days (by reason of EO No. 32) until said Order was declared
unconstitutional.
ISSUE: Whether or not the defendants denial of the allegations constitute as
grounds for the dismissal of the complaint
RULING: NO. The dismissal is erroneous. In a motion to dismiss defendant
hypothetically admits the truth of the allegations of fact contained in the complaint.
An examination of the complaint herein does not indicate clearly that prescription has
set in. On the contrary, it is belied by the allegation concerning defendants offer of
payment made on May 7, 1957. Such offer hypothetically admitted in the motion,
worked as a renewal of the obligation. An offer of payment works as a renewal of the
obligation and prevents prescription from setting in.
It is true that defendants attached to the motion a joint affidavit of merit wherein they
deny having made an offer of a plan of payment. The denial, being a contrary
averment of fact, would be proper in the answer to the complaint but not in a motion
for dismissal, for the contradictory allegations would require presentation of evidence.
Denial of allegations in a complaint is not proper in a motion to dismiss.
** A denial of an allegation of a complaint, as for example the denial of an offer of
payment which would prevent prescription from setting in, would be proper in the
answer to the complaint but not in a motion for dismissal, for the contradictory
allegations would require presentation of evidence
The same is true of the other allegations in the complaint concerning, the demands
for payment sent by plaintiff upon defendants and the partial payments made by
them, all or some of which may have a material bearing on the question of
prescription. In other words, the ground for dismissal not being indubitable, the lower
court should have deferred determination of the issue until after trial of the
case on the merits.
The order appealed from is set aside and the case is remanded to the lower court for
further proceedings.

4. #11.G.R. No. 109068 January 10, 1994

GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B.
BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents.
1.

2.

3.

4.
5.

1.

2.

3.

FACTS:
Pedro G. Hernando apparently overlooked this alleged defect since he did
not file any motion to dismiss nor attack the complaint on this ground in his
answer.
@ PRE-TRIAL: Judge Luis B. Bello, Jr.: NOTED THAT: GUERRERO and
HERNANDO were related as brothers-in-law then JUDGE gave petitioner
five (5) days "to file his motion and amended complaint" to allege that the
parties were very close relatives, their respective wives being sisters, and
that the complaint to be maintained should allege that earnest efforts
towards a compromise were exerted but failed and considered this
deficiency a JURISDICTIONAL DEFECT.
MR was filed by GUERRERO: brothers by affinity are not members of the
same family, he was not required to exert efforts towards a compromise
DENIED: "[f]ailure to allege that earnest efforts towards a compromise is
jurisdictional such that for failure to allege same the court would be deprived
of its jurisdiction to take cognizance of the case."
Case was dismissed without prejudice: No amended complaint filed
ISSUE: ON APPEAL: GUERRERO:
a. whether brothers by affinity are considered members of the same
family contemplated in Art. 217, par. (4), and Art. 222 of the New
Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of
Court requiring earnest efforts towards a compromise before a suit
between them may be instituted and maintained;
b. whether the absence of an allegation in the complaint that earnest
efforts towards a compromise were exerted, which efforts failed, is
a ground for dismissal for lack of jurisdiction.
HELD:
The Constitution protects the sanctity of the family and endeavors to
strengthen it as a basic autonomous social institution. This is also embodied
in Art. 149, and given flesh in Art. 151, of the Family Code, which provides:
Considering that Art. 151 starts with the negative word "No", the requirement
is mandatory 4 that the complaint or petition, which must be verified, should
allege that earnest efforts towards a compromise have been made but that
the same failed, so that "[i]f it is shown that no such efforts were in fact
made, the case must be dismissed."
BUT the instant case presents no occasion for the application of the abovequoted provisions. As early as two decades ago, we already ruled in Gayon
v. Gayon 6 that the enumeration of "brothers and sisters" as members of the
same family does not comprehend "sisters-in-law".

4.

5.

6.

The requirement that the complaint or petition should allege that earnest
efforts toward a compromise have been made but that the same failed is
mandatory
The enumeration of brothers and sisters as members of the same family
does not comprehend sister-in-law/ brothers-in-law are not listed in Art
217 of the NCC as members of the same family and since Art 150 repeats
the same members of the family court finds no reason to alter the existing
jurisprudence
2nd ISSUE: The attempt to compromise as well as the inability to succeed is
a condition precedent to the filing of a suit between members of the same
family, absent such allegation in the complaint being assailable at any stage
of the proceeding, even on appeal, for lack of cause of action.
5. CONTINENTAL CEMENT CORPORATION, petitioner,
vs.
COURT OF APPEALS and MUNICIPALITY OF
NORZAGARAY, respondents.

1.

2.

3.

4.

FACTS:
On February 1, 1985, the Municipality of Norzagaray filed a complaint for
recovery of taxes against the petitioner in the Regional Trial Court of
Malolos, Bulacan.
Before the expiration of the 15-day reglementary period to answer, the
petitioner filed two successive motions for extension of time to file
responsive pleadings, which were both granted. The last day of the second
extension was May 28, 1985.
On May 25, 1985, the petitioner filed a motion to dismiss the complaint on
the ground of the plaintiffs lack of capacity to sue and lack of a cause of
action. The motion was denied "both for lack of merit and for having been
improperly filed."
On July 25, 1985, the plaintiff moved to declare the petitioner in default for
having filed only the motion to dismiss and not a responsive pleading during
the extension granted. This declaration was made on August 2, 1985, and
evidence for the plaintiff was thereafter received ex parte resulting in a
judgment in its favor on February 4, 1986. The judgment was affirmed by the
respondent court in its decision dated April 7, 1989, which is the subject of
the present petition.
ISSUE: WON the Motion to Dismiss was seasonably filed.
Ruling:
There is no question that the motion to dismiss was filed seasonably, within
the period of the second extension granted by the trial court. It is true that
such a motion could not be considered a responsive pleading as SC have

held in many cases. Nevertheless, it is also true that in Section 1 of Rule 16

of the Rules of Court, it is provided that "within the time for pleading,a motion
to dismiss the action may be made" on the grounds therein enumerated,
including the grounds invoked by the petitioner.
Moreover, it is clearly provided in Section 4 of the same Rule that:
Sec. 4. Time to plead. If the motion to dismiss is denied or if
determination thereof is deferred, the movant shall file his answer within the
period prescribed by Rule 11, computed from the time he received notice of
denial or deferment, unless the court provides a different period.
The motion to dismiss was filed on May 25, 1985, three days before the
expiration of the second extension. Notice of its denial was served on the
petitioner on July 29, 1985. From that date, the petitioner had 15 days within
which to file its answer, or until August 13, 1985. It was unable to do so,
however, because of the default order issued by the trial court on August 2,
1985. On that date, the petitioner still had eleven days before the expiration
of the 15-day reglementary period during which the petitioner was supposed
to file his answer.
The Court recapitulates the rules as to the filing of a Motion to dismiss by the
defendant as follows:
1. The trial court may in its discretion and on proper motion extend the 15day reglementary period for the filing of responsive pleadings.
2. During the original reglementary 15-day period, or any extension of such
period, the defendant may file a motion to dismiss the complaint.
3. If the motion to dismiss is denied, the defendant is allowed another fifteen
days from notice of the denial to file the responsive pleading. The full 15-day
reglementary period starts all over again.

Issue: WON, respondent court gravely abused its discretion in dismissing

the case based on the ground which is not alleged in the motion to dismiss
of MOWD
1.

2.

3.

xxx Summary or outright dismissals of actions are not proper where there
are factual matters in dispute which need presentation and appreciation of
evidence. Short cuts in judicial processes are to be avoided when they
impede rather than promote a judicious dispensation of justice xxx
7. DANFOSS, INC., Petitioners, vs. CONTINENTAL CEMENT
CORPORATION, Respondent.
G.R. No. 143788 September 9, 2005

6. Borje vs. CFI of Misamis Occidental Br. II

1.

2.
3.
4.

5.

Facts:
Borje is the counsel of the water consuming public of Ozamis City, he
allegedly received a blank water bill, with no indication of the meter readings,
no. of cubic meters consumed and the amount to be paid, hence he refused
to pay said bill which lead to the disconnection of his services;
He brought an action for damages w/ preliminary injunction against MOWD
in the respondent Court;
The Court then issued an order enjoining MOWD to disconnect the water
service and subsequently to reconnect the service;
MOWD then filed a motion to dismiss based on 2 grounds: 1) lack of
jurisdiction of respondent Court and 2) another action pending between the
same parties for the same causes;
Respond Court dismissed the case but not based n the grounds above
mentioned but because there was no malice or bad faith in the severance of
the water connection of petitioner and that MOWD had already reconnected
the same.

Held: YES.
The dismissal of an actions on grounds not alleged in the motion to dismiss
is improper for in so doing, a court in effect dismiss an action motu propio
w/out giving Borje a chance to argue ithe point w/out receiving any
arguments or evidence in question.
Under Sec. 1 of Rule 8, it enumerates the grounds upon which an action
may be dismissed and it specifically ordains that a motion to this end be
filed. The only instance in which the court may dismiss upon a courts own
motion on action is, when the plaintiff fails to appear at the time of the trial
or to prosecute his action for an unreasonable length of time or to comply w/
the Rules or any order of the Court.
The dismissal of an action upon a motion to dismiss constitutes a denial of
due process, if from a consideration of the pleading it appears that there are
issues of fact which cannot be decided w/out the trial of the case on the
merits.

1.

2.

3.

FACTS:
Mechatronics Instruments and Controls, Inc. (MINCI) is an agent of Danfoss,
Inc.s products here in the Philippines. On September 1997, CCC ordered
two unit 132 KW Danfoss Brand Frequency Converter/Inverter from MINCI
to be used in the Finish Mill of its Cement Plant in Bulacan. In the terms of
conditions of the original purchase order, the two unit Frequency Converter
shall be delivered by Danfoss within 8 to 10 weeks from the opening of the
letter of credit. The letter of credit opened by CCC in favour of Danfoss on
September 9, 1997.
On September 17, 1997, MINCI informed CCC that its order are already
ready for shipment and MINCI requested to amend the letter of credit
changing the port of origin/loading from Singapore to Denmark (Singapore is
the Asian Regional Office of Danfoss, the Head Office of the company is
Denmark). CCC complied and the port of origin in the letter of credit was
changed.
On November 6, 1997, MINCI relayed to CCC that Danfoss Inc. was still
checking the status of their order. CCC replied that every delay in the

4.

5.

6.

7.

8.

delivery of the order will cause loss to their company, so CCC requested for
early work out and immediate shipment to avoid further loss.
But, on November 9, 1997, Danfoss Inc. informed MINCI through fax, that
the reason for the delivery problems was that some of the supplied
components for the new VLT 5000 series (this may be a part of the converter
which is the subject thing in this case or a machine to create the converter)
did not meet the agreed quality standard. So, Danfoss was canvassing for
another supplier for the said VLT 5000 series. In the fax, there was no clear
message as to when normal production will resume.
Upon receiving the relayed information, CCC surmised that Danfoss would
not be able to deliver their order. There was also no definite commitment of
the delivery from Danfoss and MINCI, so CCC informed MINCI that they
intend to cancel its order. The order was cancelled on November 13, 1997.
Hence the complaint for damages filed by CCC with the RTC of Quezon City
against Danfoss and MINCI on November 5, 1998. In reply, Danfoss filed a
motion to dismiss the complaint.
CCCs contention : Due to the impending delay in the delivery of its order, it
suffered more than P8 million and was compelled to look for another
supplier.
Danfosss contention: The case should be dismissed on the ground that it
did not state a cause of action.
1)
The letter of credit was opened on September 9, 1997, so, since the
agreed delivery period is 8 to 10 weeks from the opening of the letter of
credit, the due date is until November 19, 1997.
2)
Although Danfoss was having a problem with its supplier prior to
CCCs cancellation of its order, CCC only surmised that Danfoss could not
deliver within the due date agreed upon.
3)
Neither Danfoss nor CCC agreed to change the date of delivery. Only
the port of origin was changed in the letter of credit. Danfoss has until
November 19, 1997 to deliver the order, CCC cancelled the order on
November 13, 1997.
4)
CCC never made an extrajudicial demand for the delivery of its order
on its due date as it cancelled the order before the due date.
5)
Damages sought for by CCC could not have accrued yet since the
order was cancelled before the delivery was actually delayed.
RTC ruled in favor of CCC. According to the RTC: ...the issue of whether or
not the defendants incur delay in the delivery of the equipment in question
within the period stipulated is a debatable question which necessitates
actual trial on the merits where the parties have to adduce evidence in
support of their respective stance.
CA: Affirmed the decision of the RTC and denied the Motion for
Reconsideration of Danfoss.
ISSUE: WON there was a cause of action in the complaint filed by CCC
against Danfoss

HELD: No, there was no cause of action in the complaint for damages filed
by CCC.
SC ruled that In order to sustain a dismissal on the ground of lack of cause
of action, the insufficiency must appear on the face of the complaint. And
the test of the sufficiency of the facts alleged in the complaint to constitute a
cause of action is whether or not, admitting the facts alleged, the court can
render a valid judgment thereon in accordance with the prayer of the
complaint. For this purpose, the motion to dismiss must hypothetically admit
the truth of the facts alleged in the complaint.
After a careful perusal of the allegations in respondents complaint for
damages against petitioner, we rule that the same failed to state a cause of
action. When respondent sued petitioner for damages, petitioner had not
violated any right of respondent from which a cause of action had arisen.
Respondent only surmised that petitioner would not be able to deliver the
two units frequency converter/inverter on the date agreed upon by them.
Based on this apprehension, it cancelled its order six days prior to the
agreed date of delivery. How could respondent hold petitioner liable for
damages (1) when petitioner had not yet breached its obligation to deliver
the goods and (2) after respondent made it impossible for petitioner to
deliver them by cancelling its order even before the agreed delivery date?
The trial court erred in ruling that the issue of whether or not the defendants
incurred delay in the delivery of the equipment within the period stipulated
was a debatable question. It said that trial on the merits was necessary and
the parties had to adduce evidence in support of their respective positions.8
But what was there to argue about when, based on the allegations of the
complaint, petitioner was not yet due to deliver the two units frequency
converter/inverter when respondent cancelled its order? It still had six days
within which to comply with its obligation. The court a quo should not have
denied petitioners motion to dismiss the complaint (for its failure to state a
cause of action) when, on its face, it was clear that petitioner had not yet
reneged on its obligation to deliver the frequency converter/inverter on the
date mutually agreed upon by the parties. Moreover, the obligation itself was
negated by no less than respondents own act of cancelling its order even
before the prestation became due and demandable. Where therefore was
the breach? Where was the damage caused by petitioner? There was none.
Consequently, it was wrong for the CA to affirm the order of the trial court
denying petitioners motion to dismiss the complaint for its failure to state a
cause of action.
8. Lu vs. Nabua (eto lang talaga facts ng case, please read rule 16 sec
2 and 3)
Facts:

The petition stemmed from an amended complaint filed by the "PR" against
"P", for accounting w/ TRO and Injunction;
"P" filed an Omnibus MD the Amended Complaint based on the ff. grounds:
o Plaintiff's claims are barred by a prior judgement or by statute of
limitations (R16 S1f)
o Plaintiffs have no legal capacity to sue and/or do not have a cause
of action(R16 S1g)
o Fraud and Equity
o Docket Fees are not paid
"PR" filed their opposition of the Omnibus MD Amended Complaint alleging
the ff.:
o Plaintiffs not barred by prior judgment nor by statute of limitations
o Plaintiffs have the legal capacity to sue and have a valid cause of
action
o DF have been paid
After the filing of "P" reply to the Opposition to MD Amended Complaint, the
same was submitted for resolution;
In resolving the OMD, lower court denied the OMD thenafter "P" filed an MR
regarding the dismissal of the OMD however it was also denied. Hence
appeal.
Issues:
1. WoN the CA erred in dismissing the petition for certiorari in holding that
the trial court did not commit grave abuse of discretion in denying "P" MD
2. WoN the trial courts denial of petitioners motion to dismiss on the ground
that [T]here are justiciable questions raised in the pleadings of the herein
parties which are proper subject of a full blown trial contravenes Sec. 3,
Rule 16 of the Rules and constitutes grave abuse of discretion on the part of
the trial court.
Held:
1. An order denying a motion to dismiss is an interlocutory order which
neither terminates nor finally disposes of a case,as it leaves something to be
done by the court before the case is finally decided on the merits. As such,
the general rule is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari which is a remedy designed
to correct errors of jurisdiction and not errors of judgment. Neither can a

denial of a motion to dismiss be the subject of an appeal unless and until a

final judgment or order is rendered. In order to justify the grant of the
extraordinary remedy of certiorari, the denial of the motion to dismiss must
have been tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction.
2. Under R16 S3, provides that Under this provision, there are three (3)
courses of action which the trial court may take in resolving a motion to
dismiss, i.e., to grant, to deny, or to allow amendment of the pleading.
Deferment of the resolution of a motion to dismiss if the ground relied upon
is not indubitable is now disallowed in view of the provision requiring
presentation of all available arguments and evidence. Thus, there is no
longer any need to defer action until the trial as the evidence presented, and
such additional evidence as the trial court may require, would already enable
the trial court to rule upon the dubitability of the ground alleged.
Further, it is now specifically required that the resolution on the motion shall
clearly and distinctly state the reasons therefor. This proscribes the common
practice of perfunctorily dismissing the motion for lack of merit. Such
cavalier dispositions can often pose difficulty and misunderstanding on the
part of the aggrieved party in taking recourse therefrom and likewise on the
higher court called upon to resolve the same, usually on certiorari.
The questioned order of the trial court denying the motion to dismiss with a
mere statement that there are justiciable questions which require a full blown
trial falls short of the requirement of Rule 16 set forth above. Owing to the
terseness of its expressed justification, the challenged order ironically suffers
from undefined breadth which is a hallmark of imprecision. With its
unspecific and amorphous thrust, the issuance is inappropriate to the
grounds detailed in the motion to dismiss.
While the requirement to state clearly and distinctly the reasons for the trial
courts resolutory order under Sec. 3,Rule 16 of the Rules does call for a
liberal interpretation, especially since jurisprudence dictates that it is
decisions on cases submitted for decision that are subject to the stringent
requirement of specificity of rulings under Sec. 1, Rule 3624 of the Rules,
the trial courts order in this case leaves too much to the imagination.