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E. B. VILLAROSA & PARTNER CO., LTD., petitioner, vs. HON. HERMINIO I.

BENITO, in his capacity as Presiding Judge, RTC, Branch 132, Makati City and IMPERIAL DEVELOPMENT CORPORATION, respondent. Facts: Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal office address at 102 Juan Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Paraaque, Metro Manila and Kolambog, 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 Barrio Carmen, Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost housing units. On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages against petitioner, as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to comply with its contractual obligation in that, other than a few unfinished low cost houses, [1] there were no substantial developments therein. Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro [2] [3] City but the Sheriffs 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. 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. Defendant 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. on June 10, 1998, plaintiff filed a Motion to Declare Defendant in Default failed to file an Answer despite its receipt
[5]

alleging that defendant has


[6]

On June 22, 1998, plaintiff filed an Opposition to Defendants Motion to Dismiss alleging that the 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 On August 5, 1998, the trial court issued an Order denying defendants Motion to Dismiss as well as plaintiffs Motion to Declare Defendant in Default. Defendant was given ten (10) days within which to file a responsive pleading. The trial court stated that since the summons and copy of the complaint were in fact received by the corporation through its branch manager Wendell Sabulbero, there was substantial compliance with the rule on service of summons On August 19, 1998, defendant, by Special Appearance, filed a Motion for [8] Reconsideration alleging that Section 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. Defendants Motion for Reconsideration was denied in the Order dated November 20, 1998.
[11] [7]

Hence, the present petition alleging that respondent court gravely abused its discretion tantamount to lack or in excess of jurisdiction in denying petitioners motions to dismiss and for reconsideration,

despite the fact that the trial court did not acquire jurisdiction over the person of petitioner because the summons intended for it was improperly served. Petitioner invokes Section 11 of Rule 14 of the 1997 Rules of Civil Procedure.

Issue: The only issue for resolution is whether or not the trial court acquired jurisdiction over the person of petitioner upon service of summons on its Branch Manager.

Held We agree with petitioner. The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice [23] Florenz Regalado, thus: x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to be made on the president, manager, secretary, cashier, agent or any of its directors. The aforesaid terms were obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the word agent of the corporation. 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. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, to bring home to the corporation notice of the filing of the action. x x x. Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) [26] has been held as improper. Even under the old rule, service upon a general manager of a firms branch office has been held as improper as summons should have been served at the firm s principal office. In [27] First Integrated Bonding & Ins. Co., Inc. vs. Dizon, it was held that the service of summons on the general manager of the insurance firms Cebu branch was improper; default order could have been obviated had the summons been served at the firms principal office. 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. The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. Section 20 now 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. 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

SPOUSES DANTE and MA. TERESA L. GALURA, Petitioners, vs. MATH-AGRO CORPORATION, Respondent. This is a petition for review on certiorari under Rule 45 of the Rules of Court, with prayer for the issuance of a writ of preliminary injunction or temporary restraining order. In March 1997, the Spouses Galura purchased broiler starters and finishers worth P426,000 from MathAgro Corporation (MAC). The Spouses Galura paid MAC P72,500. Despite several demands, they failed to pay the P353,500 unpaid balance. MAC engaged the services of a certain Atty. Ronolfo S. Pasamba (Atty. Pasamba) for the purpose of collecting the P353,500 unpaid balance from the Spouses Galura. In its complaint dated 21 June 2000 and filed with the RTC, MAC prayed that the RTC order the Spouses Galura to pay the P353,500 unpaid balance and P60,000 attorneys fees and litigation expenses. In the complaint, MAC stated that "defendants are both of legal age, spouses, and residents of G.L. Calayan Agro System Inc., Bo. Kalayaan, Gerona, Tarlac, and/or 230 Apo St., Sta. Mesa Heights, Quezon City, where they may be served with summonses and other processes of this Honorable Court." Clerk of Court Emmanuel L. Ortega issued the corresponding summons dated 15 August 2000 requiring the Spouses Galura to file their answer within 15 days, otherwise judgment by default would be taken against them. Court Process Server Faustino B. Sildo (Sildo) went to 230 Apo Street, Sta. Mesa Heights, Quezon City, to serve the summons. There, Dante Galuras father, Dominador Galura, told Sildo that the Spouses Galura were presently residing at Tierra Pura Subdivision, Tandang Sora, Quezon City. On 22 September 2000, Sildo went to G.L. Calayan Agro System, Inc. in Barrio Kalayaan, Gerona, Tarlac to serve the summons. Sildo learned that the property had been foreclosed and that the Spouses Galura no longer resided there. On 26 September 2000, Sildo went to Tierra Pura Subdivision, Tandang Sora, Quezon City, to serve the summons. Sildo served the summons on Teresa L. Galuras sister, Victoria Lapuz (Lapuz). The Spouses Galura failed to file their answer. In its Order dated 23 January 2001, the RTC declared the Spouses Galura in default and allowed MAC to present its evidence ex parte. In its 27 June 2001 Decision, the RTC ruled in favor of MAC and ordered the Spouses Galura to pay the P353,500 unpaid balance, P30,000 attorneys fees, and expenses of litigation. On 13 December 2004, the Spouses Galura received "from their parents-in-law" a copy of the 10 November 2004 Order. On 6 January 2005, the Spouses Galura filed with the Court of Appeals a 13 petition for annulment of judgment and final order under Rule 47 of the Rules of Court, with prayer for the issuance of a writ of preliminary injunction or temporary restraining order. The Spouses Galura claimed that the RTCs 27 June 2001 Decision and 10 November 2004 Order were void for two reasons: (1) the RTC failed to acquire jurisdiction over their persons because the substituted service of summons was invalid, and (2) there was extrinsic fraud because MAC made them believe that it would not file a case against them. the Court of Appeals dismissed the petition for lack of merit. The Court of Appeals held that there was a valid substituted service of summons, that the allegation of extrinsic fraud was unbelievable, and that the
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Spouses Galura should have first availed of the ordinary remedies of new trial, appeal, or petition for relief. Under the circumstances, we believe, and so hold, that there was a valid substituted service of summons on the petitioners as defendants in the case. To begin with, the petitioners never took the bother of informing the creditor Math-Agro Corporation that they were leaving their address known to the latter and were moving on to another place of residence, so the process server took it upon himself to diligently trace the whereabouts of the petitioners until he was able to effect service of the summons on Victoria Lapuz, a sister-in-law of petitioner Dante Galura at Tierra Fura Subdivision in Tandang Sora, Quezon City, where the defendants were then residing. What they claim is that substituted service was immediately resorted to without the process server first exhausting all opportunities for personal service which is improper. Issue: In their petition dated 8 April 2005, the Spouses Galura raised as issues that the Court of Appeals erred when it ruled that (1) there was a valid substituted service of summons; (2) the allegation of extrinsic fraud was unbelievable; and (3) they should have availed first of the ordinary remedies of new trial, appeal, or petition for relief. Held: The petition is meritorious. The resort of the process server to what purports to be a substituted service, when he left the summons with Ms. Victoria Lapuz is clearly unjustified, as it was premature. He could still serve the summons personally upon herein petitioners had he exerted efforts to do so. Unfortunately, he did not, and he immediately resorted to a substituted service of the summons. The process server, in his return of service above, did not state that his attempts to serve the summons by personal service upon the petitioners at the Tierra Pura Subdivision address failed, and that the same could not be made within a reasonable time. He likewise failed to state facts and circumstances showing why personal service of the summons upon the petitioners at the said address was impossible. The Court agrees. Section 6, Rule 14 of the Rules of Court states that, "Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him." Section 7 states: SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof. In the present case, there is no showing that personal service of summons within a reasonable time was impossible. On 17 September 2000, Sildo went to 230 Apo Street, Sta. Mesa Heights, Quezon City, to serve the summons. There, Dominador Galura told him that the Spouses Galura were presently residing at Tierra Pura Subdivision, Tandang Sora, Quezon City. Despite being told of the Spouses Galuras correct address, Sildo still went to G.L. Calayan Agro System, Inc. in Barrio Kalayaan, Gerona, Tarlac to serve the summons, only to find out that the property had already been foreclosed and that the Spouses

Galura no longer resided there. On 26 September 2000, Sildo went to Tierra Pura Subdivision, Tandang Sora, Quezon City, and, without any explanation, served the summons on Lapuz. Whenever practicable, the summons must be served on the defendant in person. Substituted service may be resorted to only when service of summons within a reasonable time is impossible. Impossibility of prompt service should appear in the return of service the efforts exerted to find the defendant and the fact that such efforts failed must be stated in the return of service. Service of summons upon the defendant is the means by which the court may acquire jurisdiction over his person. In the absence of a valid waiver, trial and judgment without such service are null and void. In the present case, there was no showing in the return of service (1) of the impossibility of personal service within a reasonable time; (2) that Lapuz, the person on whom summons was served, was of suitable age and discretion; and (3) that Lapuz resided in the residence of the Spouses Galura. Consequently, the RTC did not acquire jurisdiction over the persons of the Spouses Galura, and thus the 20 Spouses Galura are not bound by the RTCs 27 June 2001 Decision and 10 November 2 004 Order. [T]he Court of Appeals erred in dismissing the original petition and denying admission of the amended petition. This is so because apparently, the Court of Appeals failed to take note from the material allegations of the petition, that the petition was based not only on extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her claim that the summons and the copy of the complaint in Sp. Proc. No. NC-662 were not served on her. In a case where a petition for annulment of a judgment or final order of the RTC filed under Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the person of the defendant/respondent or over the nature or subject of the action, the petitioner need not allege in the petition that the ordinary remedy of new trial or reconsideration of the final order or judgment or appeal therefrom are no longer available through no fault of her own. This is so because a judgment rendered or final order issued by the RTC without jurisdiction is null and void and may be assailed any time either collaterally or in a direct action or by resisting such judgment or final order an any action or proceeding whenever it is invoked, unless barred by laches.

PEDRO T. SANTOS, JR., Petitioner,

G.R. No. 170943

Present: PUNO, C.J., Chairperson, CARPIO, CORONA, AZCUNA and LEONARDO-DE CASTRO, JJ.

- versus -

PNOC EXPLORATION CORPORATION, Respondent. Promulgated: September 23, 2008

Facts: Respondent PNOC Exploration Corporation filed a complaint for a sum of money against petitioner Pedro T. Santos, Jr. in the Regional Trial Court of Pasig City, Branch 167. The complaint, docketed as Civil Case No. 69262, sought to collect the amount of P698,502.10 representing petitioners unpaid balance of the car loan 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. Respondent caused the publication of the summons in Remate, a newspaper of general circulation in the Philippines, on May 20, 2003. Thereafter, respondent submitted the affidavit of publication of the advertising manager of Remate
[5] [4]

advanced to him by respondent when he was still a member of its board

and an affidavit of service of respondents employee

[6]

to 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. Respondent proceeded with the ex parte presentation and formal offer of its evidence. Thereafter, the case was deemed submitted for decision on October 15, 2003. On October 28, 2003, petitioner filed an Omnibus Motion for Reconsideration and t o 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. In an order dated February 6, 2004, 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. During the pendency of the petition in the Court of Appeals, the trial court rendered its decision in Civil Case No. 69262. It ordered petitioner to pay P698,502.10 plus legal interest and costs of suit.
[8] [7]

Meanwhile, on September 22, 2005, the Court of Appeals rendered its decision sustaining the September 11, 2003 and February 6, 2004 orders of the trial court and dismissing the petition.

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: 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. 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.
[12]

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 publicatio n 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. Petitioner voluntarily appeared in the action when he filed the Omnibus Motion for Reconsideration and to Admit Attached Answer.
[14]

This was equivalent to service of summons and vested the trial court

with jurisdiction over the person of petitioner.

As is readily apparent, 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. 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.
[15]

Since no motion to

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. 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.

RAPID CITY REALTY AND DEVELOPMENT CORPORATION, Petitioner,

G.R. No. 184197 Present: PUNO, C.J., Chairperson, CARPIO MORALES, * NACHURA, CASTRO, BERSAMIN, and VILLARAMA, JR., JJ.

- versus -

ORLANDO VILLA and LOURDES PAEZ-VILLA, Respondents. Promulgated: February 11, 2010 Sometime in 2004, Rapid City Realty and Development Corporation (petitioner) filed a complaint for declaration of nullity of subdivision plans . . . mandamus and damages against several defendants including Spouses Orlando and Lourdes Villa (respondents). After one failed attempt at personal service of summons, Gregorio Zapanta (Zapanta), court process server, resorted to substituted service by serving summons upon respondents househelp who did not acknowledge receipt thereof and refused to divulge their names. Despite substituted service, respondents failed to file their Answer, prompting petitioner to file a Motion to Declare Defendants[-herein respondents] in Default which the trial court granted by Order of May 3, 2005.

[1]

More than eight months thereafter or on January 30, 2006, respondents filed a Motion to Lift Order of Default,
[3]

claiming that on January 27, 2006 they officially received all pertinent papers such as

Complaint and Annexes. Motion to Dismiss of the Solicitor General and the ORDER dated May 3, 2005 granting the Motion to Declare [them] in Default. And they denied the existence of two women

helpers who allegedly refused to sign and acknowledge receipt of the summons. In any event, they contended that assuming that the allegation were true, the helpers had no authority to receive the documents.
[4]

On April 18, 2007, respondents filed an Omnibus Motion for reconsideration of the second order declaring them in default and to vacate proceedings, this time claiming that the trial court did not acquire jurisdiction over their persons due to invalid service of summons.

The trial court denied respondents Omnibus Motion by Order of May 22, 2007 and proceeded to receive ex-parte evidence for petitioner.

In the meantime, the trial court, by Decision of September 4, 2007, rendered judgment in favor of petitioner.

By Decision of April 29, 2008, the appellate court annulled the trial courts Orders declaring respondents in default for the second time Held: The petition is impressed with merit.

[5]

It is settled that if there is no valid service of summons, the court can still acquire jurisdiction over the person of the defendant by virtue of the latters voluntary appearance. Thus Section 20 of Rule 14 of the Rules of Court provides: 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 shall not be deemed a voluntary appearance. As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the courts jurisdiction . This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the courts jurisdiction over his person cannot be considered to have submitted to its authority. Prescinding from the foregoing, it is thus clear that: (1) Special appearance operates as an exception to the general rule on voluntary appearance; (2) Accordingly, objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and (3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and [7] submitted to the court for resolution. (italics and underscoring supplied)

Respondents did not, in said motion, allege that their filing thereof was a special appearance for the purpose only to question the jurisdiction over their persons. Clearly, they had acquiesced to the jurisdiction of the court.

Citizens Surety v. Herrera L- 32170 (38 SCRA 369) | March 31, 1971 Facts: Citizens Surety and Insurance Co (Citizens) alleged that at the request of Santiago Dacanay, it issued 2 surety bonds to guarantee payment of P5K promissory notes in favor Gregorio Fajardo and Manufacturers Bank & Trust Co respectively. As security, the Santiago and Josefina Dacanay executed an Indemnity Agreement to jointly indemnify Citizens for losses, costs and expenses (with 12% annual interest) and a REM over a parcel of land in Baguio. The Dacanays failed to pay the promissory notes compelling Citizens to pay. The Dacanays failed to reimburse Citizens however, forcing the latter to cause the extrajudicial foreclosure of the mortgage and file a case to recover the unsatisfied balance. At petitioners request, the respondent Judge caused summons to be made by publication in the Philippines Herald. But despite such publication and deposit of copy with the Manila post office, the defendant did not appear within 60 days from the last publication. Plaintiff sought the defendants to be declared in default, but the Judge eventually dismissed the case, the suit being in personam and the defendants not having appeared. Issue: W/N summons made by publication is sufficient for the court to acquire jurisdiction Held: No. In an action strictly in personam, personal service of summons, within the forum, is essential to the acquisition of jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. In other words, summons by publication cannot consistently with the due process clause in the Bill of Rights confer upon the court jurisdiction over said defendants. The proper recourse for the creditor is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may be valid. Given the skill of debtors to conceal their properties however, the decision of the respondent Judge should be set aside and held pending in the archives until petitioner tracks down the whereabouts of the defendants person or properties.

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