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RULE 13- FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Sec. 1. Coverage
Section 1. Coverage. — This Rule shall govern the filing of all
pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed. (n)
Sec. 2. Filing and service, defined
Section 2. Filing and service, defined. — Filing is the act of
presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading
or paper concerned. If any party has appeared by counsel, service
upon him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be entitled to one
copy of any paper served upon him by the opposite side. (2a)
Garrucho v. Court of Appeals, G.R. No. 143791, January 14,
2005
FACTS: Petitioner Peter D. Garrucho, then Secretary of the
Department of Tourism and Chairman of the Board of Directors of
the Philippine Tourism Authority (PTA) requested the then
Commissioner of Immigration and Deportation Andrea Domingo
to issue Hold Departure Orders against Ramon Binamira and
Faustino Roberto.  This was in connection with the investigation
being conducted by the Department of Justice involving anomalous
transactions in government securities affecting the PTA which
entailed the loss of someP161,000,000.00.  Commissioner
Domingo granted the request and issued Hold Departure Order
Roberto requested the lifting of the order, and Secretary Garrucho
opposed the same.
Roberto then filed a complaint for prohibition and damages against
petitioner Garrucho and Commissioner Domingo in the Regional
Trial Court (RTC) of Makati City.  Binamira, for his part, filed a
complaint-in-intervention in the case.  consequences of his and his counsel’s inexcusable negligence.
Petitioner Garrucho was represented by private practitioners
Remollo & Associates, whose offices were located at Suite No. 23,
Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City.
On April 16, 1997, the trial court rendered judgment in favor of
respondent Binamira awarding damages and declaring the HDO
void ab initio, unconstitutional and illegal
The petitioner and Commissioner Domingo appealed the
decision to the Court of Appeals (CA).  On March 9, 1999, the CA
sent a notice by registered mail to the petitioner’s counsel directing
the latter to file his brief as appellant.  However, the notice was
returned to the court.  The envelope containing the said notice was
stamped, thus: “Return To Sender, Moved Out.”[2] The CA resent
the notice dated March 5, 1999 to the petitioner at his office at the
Department of Tourism building, Agripino Circle, Manila.  The
notice was returned to the CA on May 5, 1999, again, having been
“unclaimed.” The CA issued a minute resolution [3] on June 23,
1999, declaring that the service of notice on the petitioner was
complete as of May 5, 1999.  A copy of the said resolution was
sent by registered mail to the petitioner in the Department of
Tourism.
On November 26, 1999, the appellate court issued a
Resolution[4] dismissing the appeal of the petitioner for his failure
to file his brief.  A copy of the resolution was sent by registered
mail to the petitioner’s counsel, but the said resolution was
returned to the court with a notation stamped on the envelope
“Return To Sender, Moved Out.”[5] The CA then had a separate
copy of the notice served by registered mail on the petitioner at his
office address, but the same was returned to the CA with the
notation “Unclaimed.”
The appellate court issued an entry of judgment and a writ of
execution was issued.
The petitioner filed a petition for certiorari under Rule 65 of the
Rules of Court against the CA, the RTC, Sheriff Flora and
Binamira, for the nullification of the CA resolutions alleging that
he was deprived of his right to due process when the CA and the
RTC failed to serve the copies of the assailed resolutions and order
The petitioner alleged, inter alia, that the CA and RTC erred
in issuing the assailed resolutions and order because he never
received copies of the assailed CA resolutions which were sent to
him at his former office at the Department of Tourism.  He averred
that he had resigned as Secretary of the Department of Tourism
and Chairman of the PTA as early as January 9, 1991 [7] and was no
longer holding office thereat. [8]Since then, he had gone back to the
private sector and held office at 417 Benpress Building, Meralco
Avenue corner Echague Road, Ortigas Center, Pasig City.  His
counsel failed to receive his copy of the CA resolution because he
transferred his office at Suite No. 23, Legaspi Suites, 178 Salcedo
Street, Legaspi Village, Makati City, and his residence to
Dumaguete City, Negros Occidental.  He further alleged that the
CA and the RTC were obliged to take judicial notice of his
resignation as Tourism Secretary and the appointment of his
successor, his appointment as Executive Secretary by President
Fidel E. Ramos in July 1992, and his resignation from the said
position in August/September 1992.
In his comment on the petition, the private respondent alleged
that the petitioner was mandated to inform his counsel of his
present address after he (the petitioner) resigned as Secretary of the
Department of Tourism.  It was also the duty of the petitioner’s
counsel to inform the trial court of his new office address.  The
private respondent asserts that the petitioner must suffer the dire
ISSUE: WON the petitioner was deprived of due process
HELD: The petition has no merit.
The contention of the petitioner that he was deprived of his
right to due process when the CA dismissed his appeal because of
his failure to file his brief as appellant therein has no factual and
legal basis.
The records show that the counsel of the petitioner in the trial
court was the law firm of Remollo & Associates with offices at
Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village,
Makati City.  Under Section 2, Rule 44 of the 1997 Rules of Civil
Procedure, the counsel of the parties in the court of origin shall be
considered as their counsel in the CA.[9]
Section 2, Rule 13 of the Rules of Civil Procedure provides
that if any party has appeared by counsel, service upon him shall
be made upon his counsel unless served upon the party himself is
ordered by the trial court.[10] Notice or service made upon a party
who is represented by counsel is a nullity. [11] Notice to the client
and not to his counsel of record is not notice in law. [12] The rule
admits of exceptions, as when the court or tribunal orders service
upon a party or when the tribunal defendant is waived.[13]
In the absence of a proper and adequate notice to the court of
a change of address, the service of the order or resolution of a court
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upon the parties must be made at the last address of their counsel
on record.[14] It is the duty of the party and his counsel to device a
system for the receipt of mail intended for them, just as it is the
duty of the counsel to inform the court officially of a change in his
address.  It is also the responsibility of a party to inform the court
of the change of his address so that in the event the court orders
that an order or resolution be served on the said party to enable
him to receive the said resolution or order.[15]
In the present case, the law firm of Remollo & Associates,
the petitioner’s counsel of record, moved out from their office at
the Legaspi Suites to Dumaguete City without informing the court
of such fact.  Based on its records, the CA believed that the law
office of the petitioner’s counsel was still at the Legaspi Suites and
sent copies of its resolutions to the counsel of the petitioner at the
said address.
Neither did the petitioner inform the court of his home or
office address after his resignation as Secretary of the Department
of Tourism where copies of the said order or resolution could be
sent.  Notwithstanding his stature in the business community, the
CA cannot take judicial notice of the petitioner’s home address or
his office address after his departure as Secretary of the
Department of Tourism or as Executive Secretary of the President.
Indeed, the petitioner has nobody but himself to blame.  It
was his responsibility to check the status of his appeal in the CA
from time to time, from his counsel or from the CA.  He failed to
do so.  As we held in Bernardo v. Court of Appeals:[16]
Litigants, represented by counsel, should not expect that all they
need to do is sit back, relax and await the outcome of their case. 
They should give the necessary assistance to their counsel for what
is at stake is their interest in the case.
In his concurring opinion in Republic vs. Sandiganbayan, Mr.
Justice Teodoro R. Padilla emphasized the value and significance
of the party’s presence and diligence in the advancement of his
cause, thus:
xxx  An almost lifetime of experience in litigation is the best
witness to the indispensability of party’s presence (aside from his
lawyer, in case he has the assistance of counsel) in order to litigate
with any reasonable opportunity of success.  xxx especially during
the cross-examination of adverse party’s witnesses – where the
truth must be determined – every counsel worth his salt must have
the assistance and presence of his client on the spot, for the client
invariably knows the facts far better than his counsel.  In short,
even in civil cases, the presence of party (as distinguished from his
lawyer alone) is essential to due process.
True enough, the party-litigant should not rely totally on his
counsel to litigate his case even if the latter expressly assures that
the former’s presence in court will no longer be needed.  No
prudent party will leave the fate of his case entirely to his lawyer. 
Absence in one or two hearings may be negligible but want of
inquiry or update on the status of his case for several months (four,
in this case) is inexcusable.  It is the duty of a party-litigant to be in
contact with his counsel from time to time in order to be informed
of the progress of his case.  Petitioner simply claims that he was
busy with his gravel and sand and trading businesses which
involved frequent traveling from Manila to outlying provinces. 
But this was not a justifiable excuse for him to fail to ask about the
developments in his case or to ask somebody to make the query for
him. Petitioner failed to act with prudence and diligence; hence, his
plea that he was not accorded the right to due process cannot elicit
this Court’s approval or even sympathy.[17]
Phil. Radiant Products v. Metrobank, G.R. No. 163569,
December 9, 2005
FACTS: On February 1, 2001, the Philippine Radiant Products,
Inc. (PRPI) filed a complaint[3] against the Aurora Textile
Finishing Company (ATFC), the Philippine Savings Bank (PSB),
and the Metropolitan Bank & Trust Company, Inc. (MBTC) in the
RTC of Tagum City, for specific performance and damages.
On August 12, 2000, an order for 35,000 yards of medical plaster
cloth backing was placed by PRPI and accepted by ATFC.  The
shipment arrived at the port of Manila.  However, the agreed port
of destination was the Davao City port.  When the shipment of
35,000 yards of medical plaster cloth backing finally arrived at
Davao City, PRPI discovered that the said 35,000 yards cloth
backing were not vinyl coated. 
PRPI immediately informed PSB and MBTC of the discrepancy.
ATFC promised PRPI that it would send to the Philippines a
technician to perform vinyl coating. In the meantime, ATFC
demanded payment of the shipment and was poised to collect from
PSB and MBTC.  PRPI thus prayed in its complaint for injunctive
relief to enjoin PSB and MBTC from making payment to ATFC
for the shipment.
On February 21, 2001, the RTC issued an Order [7] enjoining the
PSB and MBTC to suspend payment for the goods to ATFC until
final orders of the court. But on March 13, 2001, Metropolitan
Bank filed its Answer[8] in which it interposed  in the special and
affirmative defense that it had already paid the amount on January
31, 2001 under the Letter of Credit with ATFC named as
beneficiary
Meanwhile, on June 14, 2002, the RTC of Tagum City rendered
judgment in Civil Case No. 3400 in favor of PRPI and against
MBTC and ATFC.  The Court later granted a writ of execution.
On August 27, 2002, the Sheriff arrived at the Davao City office of
MBTC and served copies of the August 22, 2002 Orders and the
writ of execution on William R. Vidanes, the manager of
MBTC, who endorsed the said orders to Patricia Uy, the General
Manager of the Davao City branch.[21] On August 30, 2002, the
counsel of MBTC received copies of the August 22, 2002 Orders
of the court.  He filed a Notice of Appeal of the RTC of Tagum
City’s decision and its August 22, 2002 Order partially granting
MBTC’s motion for reconsideration of the decision.[22]
PRPI opposed the appeal of MBTC contending that it was filed
beyond the period therefor.  PRPI alleged that MBTC received a
copy of the August 22, 2002 Order denying its motion for
reconsideration on August 27, 2002, and not on August 30, 2002 as
alleged by MBTC.  PRPI relied on the Initial Report[23] of the Ex-
Officio Sheriff dated September 2, 2002 on his service of the writ
of execution and said order wherein he stated, inter alia, that he
talked by telephone to MBTC’s counsel, when he served on
August 27, 2002 the Orders dated August 22, 2002 of the RTC of
Tagum City on Vidanes and Uy and said counsel ordered him to
leave the copies of the orders with Uy.  
MBTC declared, in its Reply and Surrejoinder, that the period for
appeal should be reckoned from August 30, 2002 when its counsel
received, by registered mail, the August 22, 2002 Order of the
RTC of Tagum City denying its motion for reconsideration and not
from August 27, 2002 when Vidanes and Uy were served with
copies of said orders.   MBTC also alleged that its counsel objected
to the service on Vidanes and Uy of the August 22, 2002 Order
denying its motion for reconsideration considering that separate
copies of said order had been served on its counsel of record.
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At the hearing on PRPI’s motion for clarification, the Ex-
Officio Sheriff testified that he was told by Atty. Emmanuel
Galicia, Jr., MBTC’s counsel, when they talked on the telephone
on August 22, 2002, to just leave the copies of the August 22, 2002
Order with Uy.[24]  through Vidanes and/or Uy on August 27, 2002 was not service on
 
RTCRuling
On September 20, 2002, the RTC of Tagum City issued an
Order[25] denying MBTC’s notice of appeal and declaring the June
14, 2002 Decision final and executory.  The RTC of Tagum City
gave credence to the testimony of the sheriff.  MBTC filed a
motion to present Atty. Galicia to refute the testimony of the Ex-
Officio Sheriff.  When MBTC received the September 20, 2002
Order of the RTC of Tagum City, it filed an urgent motion for
reconsiderationex abundanti ad cautelam[26]  with a tender of the
testimony of Atty. Galicia refuting the testimony of the sheriff.   a.m., I served a copy of the Writ of Execution,
CA Ruling
The CA On February 4, 2004, reversed the RTC
Resolution which denied Metrobank’s notice of appeal ruling it
was filed on time
The CA delved into the merits of the petition and held
that MBTC’s appeal from the decision of the RTC was within the
period therefor.  The service by the Ex-Officio Sheriff on MBTC,
through Patricia Uy, of the August 22, 2002 Order of the RTC
denying the motion for reconsideration of its decision was not
made on MBTC absent a specific order from the RTC authorizing
the service thereof on the petitioner and not on its counsel.  Thus,
the appellate court concluded, the RTC committed grave abuse of  back again to Metro Bank, Davao City, to follow
discretion amounting to excess or lack of jurisdiction in dismissing
MBTC’s appeal.
 
PRPI filed a motion for reconsideration of the decision of
the appellate court.  On April 27, 2004, the CA denied the motion.
[50]
PRPI, now the petitioner, filed its petition for review
on certiorari of the decision and resolution of the CA  The report does not state that respondent MBTC’s
ISSUE: WON the notice of appeal was filed on time; WON the
service was properly made
HELD:
In nullifying the September 20 and October 4, 2002
Orders of the RTC of Tagum City, the CA declared that service of
a copy of the assailed RTC Order on Uy on August 27, 2002 did
not amount to service thereof on respondent MBTC.  Service of
such order on the respondent took place on August 30, 2002 when
Atty. Galicia received his copy of the order by registered mail.
The petitioner asserts that the ruling of the CA is not
correct.  It posits that, as stated by the RTC, based on the testimony
of the Sheriff, Atty. Galicia, the counsel of record of the
respondent in the RTC,  learned of the August 22, 2002 Order of
the RTC denying the respondent’s motion for reconsideration of its
decision when he informed Atty. Galicia on August 27, 2002 of
said order, copies of which he was serving on William Vidanes,
the Davao City Bank Manager of the respondent.  According to the
Sheriff, Atty. Galicia instructed him to just leave the copy of the
order with Vidanes or Uy.  The petitioner avers that, as against the
testimony of the respondent, that of the Sheriff, who is presumed
to have acted regularly, should prevail.   process server. The Sheriff had a copy of the assailed order
 
The contention of the petitioner is incorrect.  It bears
stressing that the respondent was represented by Atty. Galicia and
Atty. Silvanio Liza whose offices were located in Davao City.  The
August 22, 2002 Order of the RTC denying the respondent’s
motion for reconsideration of its decision was sent to said counsel
by registered mail.  Service of the order on the manager of
respondent MBTC and not on its counsel was not notice to the said
respondent.  The only exception is when the service upon the party
itself has been ordered by the court.[63]
 
The service of the sheriff of the August 22, 2002 Order
the respondent. Neither could the respondent be deemed to have
been notified thereof as of August 27, 2002 for purposes of appeal.
 
We have examined the CA Rollo and the pleadings of the
parties in this case and find no evidence that Atty. Galicia waived
the service of the August 22, 2002 Order of the RTC on the
respondent, through counsel, as provided in the 1997 Rules of
Civil Procedure.  The initial report of the Sheriff and his testimony
before the RTC are incongruent. The initial report of the Sheriff
reads:
That on August 27, 2002 at about 11:45
together  with a duplicate copy of two (2) orders
dated August 22, 2002, to Metro Bank, Davao
City, which was received personally by Mr.
William Vidanes, Manager, and he indorsed the
said writ to the Metrobank’s General Manager,
Mrs. Patricia Uy, in her office at second floor,
Metro Bank Building, Davao City, and she
called up and referred to their counsel thru
telephone. I talked to the counsel of Metro Bank
thru telephone and he questioned me regarding
the said execution why I served it when in fact
they have not yet received any order from the
court;
 
That on September 02, 2002, I went
up about the said writ but Mr. William R.
Vidanes informed me that Mrs. Patricia Uy, Gen.
Manager of the said bank is on leave and that he
doesn’t know of any development with regards
to the said writ because the Gen. Manager is the
one in-charge of it.[64]
 
counsel, Atty. Galicia, instructed the Sheriff to leave copies of the
Orders with Vidanes or Uy.
 
When the Sheriff testified during the hearing of the
motion of the petitioner for clarification, he declared that Atty.
Galicia ordered him to leave a copy of the August 22, 2002 Order
of the RTC with Uy, which he did, and that Vidanes acknowledged
having received a copy of the said order.[65]
                       
However, when he testified, Atty. Galicia belied the testimony of
the Sheriff
We are inclined to believe the testimony of Atty.
Emmanuel Galicia.  The testimony of counsel is congruent with
the initial report of the Sheriff that he (Atty. Galicia) questioned
the service of the orders on the bank manager of the respondent,
and that neither Uy nor Vidanes acknowledged receipt of copies of
the orders of the RTC.  (Vidanes acknowledged receipt of only a
true copy of  the writ of execution.)
 
It was not part of the duties of the Sheriff to serve copies
of the assailed Order of the RTC on the counsel of the respondent
unless directed by the said court.  Such duty devolved on its
because it was forwarded to him by the Branch Clerk of the RTC
for the purpose of the implementation of the writ of execution.[67]
 
We do not believe that a practicing lawyer will simply
allow the Sheriff to just leave copies of the orders of the court
especially an order on his motion for reconsideration on the bank
manager and waive his right to be served with copies thereof as
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required by the 1997 Rules of Civil Procedure.  The least that a
lawyer would do is to order the Sheriff to deliver the order to his
office and for the sheriff to serve the writ of execution on the bank
manager.  Atty. Galicia knew that he filed a motion for
reconsideration only on July 12, 2002 which was the fifteenth day
from his receipt of the assailed decision on June 27, 2002.
 
Knowledge by Atty. Galicia of the existence of the
assailed Order on August 27, 2002 during his telephone
conversation with the Sheriff does not amount to service thereof on
the respondent as contemplated in Section 13, Rule 13 of the 1997
Rules of Civil Procedure.  Service on the respondent of the assailed
order on Atty. Galicia  took place only on August 30, 2002 when
he, in fact, received the said order through registered mail.
Grand Placement v. Court of Appeals, G.R. No. 142358, January
31, 2006
FACTS: Mary Ann Paragas (respondent) filed a complaint for
breach of contract, non-payment of monetary benefits and damages
against Philips Electronics of Taiwan Ltd. (Philips) and its
accredited agent, J.S. Contractor, Inc., (JSCI) before the NLRC,
National Capital Region, Quezon City.
She was first deployed to Chupei City, Taiwan but was transferred
to Chungli City. However, she stopped receiving for 10 months her
additional daily night shift allowance of NT$215.00 and full
attendance bonus of NT$900.00 per month, benefits which she
enjoyed while in Chupei City; she paid an excessive placement fee
of P52,000.00; she returned to the Philippines on December 23,
1995.   HELD:
During the pendency of the case, the accreditation of JSCI
was transferred to Grand Placement and General Services
Corporation (petitioner). Consequently, petitioner was impleaded
as additional party respondent in the NLRC case.
JSCI denied liability for herein respondent’s monetary claims in
view of the transfer of accreditation to petitioner. To refute the
charge of excessive placement fee, JSCI presented Official Receipt
No. 5890 dated October 28, 1994 in the amount ofP18,350.00. For
its part, petitioner averred that it cannot be held liable as transferee
agent because it had no privity of contract with respondent.   also secundum caritatem.[32]
The LA ruled in favor of Paragas. JSCI appealed to the
NLRC invoking anew that it is not liable in view of the transfer of
its accreditation.  It likewise repeated its argument that respondent
paid only the amount of P18,350.00 as placement fee.
 
On November 25, 1997, the NLRC modified the decision of the
Labor Arbiter by dismissing the case against JSCI and holding
petitioner solely liable for respondent’s claims.
petitioner filed a petition for certiorari before us and we issued a
TRO but referred the case to the CA. in accordance with St.
Martin Funeral Homes v. National Labor Relations Commission.
[16]
  
 
On September 14, 1999, the CA issued the herein assailed
Decision affirming the decision of the NLRC and lifting the TRO
issued by this Court. The CA held that petitioner is liable under
Section 6, Rule I, Book III of the POEA Rules and Regulations in
which the transferee agency shall assume full and complete
responsibility for all contractual obligations of the principals to its
workers originally recruited and processed by the former agency.   record in court, any judicial notice sent to a counsel of record is
Petitioner filed a motion for reconsideration [19] and a
supplement thereto[20] but the CA denied the motion in a
Resolution dated January 7, 2000.[21]
 
          Hence, the present petition for review on certiorari  negligence of Atty. Orias, Jr. cannot be deemed as negligence of
In her Comment,[25] respondent alleges that the instant petition
merits outright dismissal for being filed out of time since petitioner
admitted that its counsel on record, Atty. Ricardo C. Orias, Jr.,
received copy of the CA Resolution dated January 7,
2000on January 25, 2000 and the petition was filed only on May 5,
2000 or 101 days late.  Respondent submits that the argument that
the filing of the petition was delayed because the notice of
withdrawal of Atty. Orias, Jr. was not filed on time with the CA by
the petitioner as it is not adept to legal intricacies is but a tactical
ploy to delay the case and avoid payment of its monetary liability.
In its Reply,[26] petitioner points out that: it received a
copy of the CA Resolution dated January 7, 2000 only on March
23, 2000; within fifteen days thereafter it filed before this Court a
motion for a thirty-day extension of time or up to May 7, 2000 to
file a petition for review on certiorari which was granted by the
Court; the petition was filed on May 6, 2000, [27] within the
extended period; the failure of Atty. Orias, Jr., who had already
withdrawn from the case, to duly inform it that the motion for
reconsideration was denied by the CA upon receipt of the CA
Resolution dated January 7, 2000 was not its fault and should not
be taken against it. It submits that it should be deemed to have
notice of the denial of the motion for reconsideration only as of the
date of its actual receipt, i.e., March 23, 2000. It insists that it
should not be made to bear the adverse consequences of Atty.
Orias, Jr.’s negligence.
ISSUE: WON there was proper service
In numerous cases, the Court has allowed liberal
construction of the Rules of Court with respect to the rules on the
manner and periods for perfecting appeals, when to do so would
serve the demands of substantial justice and in the exercise of
equity jurisdiction of the Supreme Court. [30]  Indeed, laws and rules
should be interpreted and applied not in a vacuum or in isolated
abstraction but in light of surrounding circumstances and attendant
facts in order to afford justice to all. [31] Thus, where a decision may
be made to rest on informed judgment rather than rigid rules, the
equities of the case must be accorded their due weight because
labor determinations should not only be secundum rationem but
 
In this particular case, the suspension of the Rules is
warranted since the procedural infirmity was not entirely
attributable to the fault or negligence of petitioner.  Petitioner and
its counsel, Atty. Orias, Jr., agreed to terminate the services of the
latter on January 25, 2000.[33]  Atty. Orias, Jr. received the CA
Resolution on January 28, 2000.[34] The “Withdrawal of
Appearance” which Atty. Orias, Jr. gave to petitioner was sent by
the latter thru registered mail only on March 24, 2000 and received
by the CA on March 27, 2000.[35]
Considering that only three days have elapsed since the
termination of his services, Atty. Orias, Jr. should have promptly
relayed to petitioner that he received the Resolution dated January
7, 2000 denying petitioner’s motion for reconsideration.  Had he
done so, he would have known that his Withdrawal of Appearance
has not been sent yet by petitioner.  It is the duty of a lawyer to pay
heed to the urgency and importance of registered letter sent by the
court.[36]  Before the date of receipt on March 27, 2000 by the CA
of the Withdrawal of Appearance, Atty. Orias, Jr. remained as
petitioner’s counsel of record. 
 
Ordinarily, until his dismissal or withdrawal is made of
binding upon his client even though as between them the
professional relationship may have been terminated. [37]  However,
under the peculiar circumstances of this case, Atty. Orias, Jr. was
negligent in not adequately protecting petitioner’s interest, which
necessarily calls for a liberal construction of the Rules. Verily, the
5
petitioner itself in the present case.  A notice to a lawyer who
appears to have been unconscionably irresponsible cannot be
considered as notice to his client.[38]  Thus, petitioner is deemed to
have filed its petition for review on certiorari within the
reglementary period as alleged in its Reply.
Salting v. Velez, G.R. No. 181930, January 10, 2011
FACTS: On October 7, 2003, respondents John Velez and Clarissa
Velez filed a complaint[3] for ejectment against petitioner Milagros
Salting. respondents obtained a favorable decision.
 Thereafter, petitioner instituted an action before the Regional Trial
Court (RTC), Branch 153, for Annulment of Sale of the Property.
Petitioner claimed that she purchased the subject parcel of land
from Villamena as evidenced by a notarized document known as
Sale of Real Estate. She further explained that respondents were
able to obtain title to the subject property through the fraudulent
acts of the heirs of Villamena. Finally, she averred that the
decision in Civil Case No. 2524 had not attained finality as she
was not properly informed of the MeTC decision. Petitioner claims
that the MeTC decision was declared final and executory despite
the fact that the copy of the decision was served on her deceased
counsel.
the RTC, in an Order dated October 26, 2006, granted the writ of
preliminary injunction applied for.[6]            In the present case, the finality of the March 28, 2006
Aggrieved, respondents filed a special civil action
for certiorari under Rule 65 of the Rules of Court before the CA.
In a Decision[7] dated November 29, 2007, the CA resolved the
issue in the affirmative. The appellate court concluded that
petitioner had no clear and unmistakable right to possession over
the subject parcel of land in view of the March 28, 2006 MeTC
decision. Hence, contrary to the conclusion of the RTC, the CA
opined that petitioner was not entitled to the writ of preliminary
injunction
Petitioner now comes before this Court in this petition for review
on certiorari under Rule 45 of the Rules of Court.
Petitioner contends that the Court of Appeals disregarded the rule
that service of decision to a deceased lawyer is invalid and that the
party must be duly served by the final judgment in order that the
final judgment will become final and executory. The Court of
Appeals, likewise, disregarded the existence of a clear and existing
right of the petitioner which should be protected by an injunctive
relief and the rule that the pendency of an action assailing the right
of a party to eject will justify the suspension of the proceedings of
the ejectment case.
ISSUE: WON the service was proper
HELD:
We find no merit in the petition.
. rendered judgment on November 23, 2006 in favor of petitioner.
We first determine the validity of the service of the March
28, 2006 MeTC decision on petitioner’s counsel who, as of that
date, was already deceased. If a party to a case has appeared by
counsel, service of pleadings and judgments shall be made upon
his counsel or one of them, unless service upon the party himself is
ordered by the court.[10]  Thus, when the MeTC decision was sent
to petitioner’s counsel, such service of judgment was valid and
binding upon petitioner, notwithstanding the death of her
counsel.  It is not the duty of the courts to inquire, during the
progress of a case, whether the law firm or partnership continues to
exist lawfully, the partners are still alive, or its associates are still
connected with the firm.[11] Litigants, represented by counsel,
cannot simply sit back, relax, and await the outcome of their case.
[12]
 It is the duty of the party-litigant to be in contact with her
counsel from time to time in order to be informed of the progress
of her case.[13] It is likewise the duty of the party to inform the
court of the fact of her counsel’s death. Her failure to do so means
that she is negligent in the protection of her cause, and she cannot
pass the blame to the court which is not tasked to monitor the
changes in the circumstances of the parties and their counsels.
          It is noteworthy that when petitioner came to know of the
death of her counsel and upon obtaining the services of a new
counsel, petitioner instituted another action for the annulment of
the deed of sale between her and the heirs of Villamena, instead of
questioning the MeTC decision  through an action for annulment
of judgment. Obviously, the annulment case instituted by petitioner
is separate and distinct from the ejectment case filed by
respondents. She cannot, therefore, obtain relief through the
second case for alleged errors and injustices committed in the first
case.
 
With the foregoing disquisition, we find that the March
28, 2006 MeTC decision had, indeed, become final and
executory. A final and executory decision can only be annulled by
a petition to annul the same on the ground of extrinsic fraud and
lack of jurisdiction, or by a petition for relief from a final order or
judgment under Rule 38 of the Rules of Court. However, no
petition to that effect was filed. [14] Well-settled is the rule that once
a judgment becomes final and executory, it can no longer be
disturbed, altered, or modified in any respect except to correct
clerical errors or to make nunc pro tunc entries. Nothing further
can be done to a final judgment except to execute it.[15]
 
decision with respect to possession de facto cannot be affected by
the pendency of the annulment case where the ownership of the
property is being contested. [16] We are inclined to adhere to settled
jurisprudence that suits involving ownership may not be
successfully pleaded in abatement of the enforcement of the final
decision in an ejectment suit.
Sec. 3. Manner of filing
Section 3. Manner of filing. — The filing of pleadings,
appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof,
plainly indicated as such, personally to the clerk of court or by
sending them by registered mail. In the first case, the clerk of court
shall endorse on the pleading the date and hour of filing. In the
second case, the date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as shown by the post office
stamp on the envelope or the registry receipt, shall be considered
as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case. (1a)
Russel v. Austria, G.R. No. 184542, April 23, 2010
FACTS: The petition stems from a complaint for forcible entry
filed by petitioner Alma B. Russel against respondents Teofista
Ebasan and Agapito Austria. The Municipal Trial Court in Cities
(MTCC) of Iligan City heard the ejectment proceedings and
[3]
 The trial court ordered respondents to vacate the property
involved and to pay attorney’s fees and costs.[4]
 
          Prejudiced by the ruling, respondents appealed to the
Regional Trial Court (RTC). The RTC, in its March 28, 2007
Decision,[5] reversed the ruling of the MTCC and ordered the
dismissal of the complaint.
 
          Petitioner received her copy of the RTC decision on April
13, 2007.[6] Inclined to appeal the adverse ruling to the CA,
petitioner, on April 20, 2007, filed a motion for an extension of 15
days from the expiry of the reglementary period for the filing of a
petition for review. Petitioner attached to her motion postal money
orders representing the filing and docket fees. [7] She consequently
filed via registered mail her petition for review with the appellate
court on May 15, 2007.[8]
 
Assailed ruling
6
          In the assailed June 18, 2007 Resolution, [9] the CA dismissed
the appeal on the following grounds: that it was filed out of time,
in violation of Sec. 1, Rule 42. Even if petitioner’s Motion for
Extension of Time to File Petition for Review were granted, the
Petition would have still been filed six (6) days late from the
requested extension of time and there was no Written Explanation
why the Petition was filed by mail instead of the preferred mode of
personal filing, as is required under Sec. 11, Rule 13.
Petitioner received her copy of the June 18, 2007 Resolution on
July 18, 2007.[11] On July 27, 2007, petitioner filed by registered
mail her motion for reconsideration and admission of her amended
petition. She pointed out in her motion that the petition was filed
within the extended reglementary period. She also explained that
her office clerk inadvertently failed to attach the page containing
the explanation why filing by registered mail was resorted to.
The appellate court, however, in the assailed August 26,
2008 Resolution,[13] denied petitioner’s motion. It ruled that the
motion for reconsideration was filed only on October 4, 2007, or
63 days after the expiry of the reglementary period for the filing
thereof.
Aggrieved, petitioner elevated the matter to this
Court via the instant petition for review on certiorari.
ISSUE: WON the petition was filed on time
HELD: The Court grants the petition and remands the
case to the appellate court for disposition on the merits.
 
Petitioner’s petition for review (under Rule 42) and
motion for reconsideration before the appellate court were filed
well within the reglementary period for the filing thereof.
 
It must be noted that petitioner received her copy of the
RTC decision on April 13, 2007. Following the Rules of Court, she
had 15 days or until April 28, 2007 to file her petition for review
before the CA. Section 1 of Rule 42 provides:
 
Sec. 1. How appeal taken; time for
filing.—A party desiring to appeal from a
decision of the Regional Trial Court rendered in
the exercise of its appellate jurisdiction may file
a verified petition for review with the Court of
Appeals, paying at the same time to the clerk of
said court the corresponding docket and other
lawful fees, depositing the amount of P500.00
for costs, and furnishing the Regional Trial Court
and the adverse party with a copy of the petition.
The petition shall be filed and served within
fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of
petitioner’s motion for new trial or
reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full
amount of the docket and other lawful fees and
the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days
only within which to file the petition for review.
No further extension shall be granted except for
the most compelling reason and in no case to
exceed fifteen (15) days.
 
On April 20, 2007, petitioner filed before the
CA, via registered mail, her motion for extension of time to file the
petition for review. She pleaded in her motion that she be granted
an additional 15 days, counted from the expiry of the reglementary
period. Petitioner likewise attached to her motion postal money
orders representing the docket fees.
 
Fifteen days from April 28, 2007 would be May 13, 2007.
This was, however, a Sunday. May 14, 2007, the following day,
was a legal holiday—the holding of the national and local
elections. Section 1 of Rule 22 states:
Sec. 1. How to compute time.—In
computing any period of time prescribed or
allowed by these Rules, or by order of the court,
or by any applicable statute, the day of the act or
event from which the designated period of time
begins to run is to be excluded and the date of
performance included. If the last day of the
period, as thus computed, falls on a Saturday, a
Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next
working day.
 
Therefore, when petitioner filed her petition for review with the
appellate court on May 15, 2007, the same was well within the
extended period for the filing thereof.
 
          Petitioner’s motion for reconsideration was likewise filed on
time.  She received a copy of the June 18, 2007 CA Resolution on
July 18, 2007. Under Section 1 of Rule 52, she had 15 days from
notice, or until August 2, 2007, to file a motion for reconsideration.
[14]
  Petitioner filed by registered mail her motion for
reconsideration on July 27, 2007. The fact of mailing on the said
date is proven by the registry return receipt, [15] the affidavit of
service,[16] and the certification of the Office of the Postmaster of
Iligan City.[17] Section 3, Rule 13 of the Rules of Court[18] provides
that if a pleading is filed by registered mail, then the date of
mailing shall be considered as the date of filing.  It does not matter
when the court actually receives the mailed pleading. Thus, in this
case, as the pleading was filed by registered mail on July 27, 2007,
within the reglementary period, it is inconsequential that the CA
actually received the motion in October of that year.
 
          As to the CA’s dismissal of the petition for review on the
ground that petitioner failed to attach a written explanation for
non-personal filing, the Court finds the same improper. Iligan City,
where petitioner resides and where her counsel holds office, and
Cagayan de Oro City, where the concerned division of the CA is
stationed, are separated by a considerable distance. The CA, in the
exercise of its discretion, should have realized that it was indeed
impracticable for petitioner to personally file the petition for
review in Cagayan De Oro City. Given the obvious time, effort and
expense that would have been spent in the personal filing of the
pleadings in this case, the written explanation why service had not
been done personally, as required by Section 11 of Rule 13, may
be considered as superfluous.[19]
Heirs of Numeriano Miranda v. Heirs of Pedro Miranda, G.R.
No. 179638, July 8, 2013
FACTS: In 1994, petitioners representing themselves as the heirs
of Numeriano Miranda, Sr., filed before the Regional Trial Court
(RTC) of Muntinlupa City, a Complaint 5 for Annulment of Titles
and Specific Performance against the heirs of Pedro Miranda.
After trial, the RTC, Branch 256, rendered a Decision sustaining
the validity of the title but ordering the respondent to indemnify all
other heirs of NUMERIANO MIRANDA the amount equivalent to
12/13 fair market value of the co-owned residential house of their
share and for petitioner to vacate the house; and ordering partition
among them of the properties of TRANQUILINO MIRANDA.
7
On December 11, 2001, the RTC issued a Writ
Execution,9 which was not implemented.
On July 8, 2005, respondent filed an Ex-parte Motion11 praying
that the RTC issue a "Break-Open and Demolition Order" in order
to compel the petitioners to vacate his property. 12 But since more
than five years have elapsed from the time the Writ of Execution
should have been enforced, the RTC denied the Motion in its
Order.
This prompted respondent to file with the RTC a Petition 14 for
Revival of Judgment. Petitioners opposed the revival of judgment
assailing, among others, the jurisdiction of the RTC to take
cognizance of the Petition for Revival of Judgment.15
On June 20, 2006, the RTC rendered a Decision 16 granting the
Petition
On July 13, 2006, petitioners filed a Notice of Appeal  via 18
LBC,19 which was opposed by respondent on the ground that the
Decision dated August 30, 1999 has long become final and
executory.20 Petitioners, in turn, moved for the transmittal of the
original records of the case to the CA, insisting that respondent’s
opposition is without merit.21
Finding the appeal barred by prescription, the RTC denied the
Notice of Appeal
Feeling aggrieved, petitioners filed a Petition for Mandamus 24 with
the CA praying that their Notice of Appeal be given due course.25
On June 14, 2007, the CA denied the Petition for Mandamus on the
ground that the Notice of Appeal was filed out of time
Hence, this recourse. Petitioners assert that an action to revive
judgment is appealable,30 and that their appeal was perfected on
time.31 They insist that the Notice of Appeal, which they filed on
the 15th day via LBC, was seasonably filed since the law does not
require a specific mode of service for filing a notice of appeal.
Besides, even if their appeal was belatedly filed, it should still be
given due course in the interest of justice, 33 considering that their
counsel had to brave the storm and the floods caused by typhoon
"Florita" just to file their Notice of Appeal on time.34
Petitioners further contend that their appeal is meritorious.35 They
insist that it is the Metropolitan Trial Court (MeTC), not the RTC,
which has jurisdiction over the Petition for Revival of Judgment
since the amount in the tax declarations of the properties involved
is less than Fifty Thousand Pesos (P50,000.00).36 They likewise
assail the Decision dated August 30, 1999, claiming that the deeds
and certificates of title subject of Civil Case No. 94-612 were
falsified
ISSUE: WON the appeal was filed on time
HELD: The Petition lacks merit.
The Notice of Appeal was belatedly filed.
It is basic and elementary that a Notice of Appeal should be filed
"within fifteen (15) days from notice of the judgment or final order
appealed from."40
Under Section 3,41 Rule 13 of the Rules of Court, pleadings may be
filed in court either personally or by registered mail. In the first
case, the date of filing is the date of receipt. In the second case, the
date of mailing is the date of receipt.
of In this case, however, the counsel for petitioners filed the Notice of
Appeal via a private courier, a mode of filing not provided in the
Rules. Though not prohibited by the Rules, we cannot consider the
filing of petitioners’ Notice of Appeal via LBC timely filed. It is
established jurisprudence that "the date of delivery of pleadings to
a private letter-forwarding agency is not to be considered as the
date of filing thereof in court;" instead, "the date of actual receipt
by the court x x x is deemed the date of filing of that
pleading."42 Records show that the Notice of Appeal was mailed on
the 15th day and was received by the court on the 16th day or one
day beyond the reglementary period. Thus, the CA correctly ruled
that the Notice of Appeal was filed out of time.
Neither can petitioners use typhoon "Florita" as an excuse for the
belated filing of the Notice of Appeal because work in government
offices in Metro Manila was not suspended on July 13, 2006, the
day petitioners’ Notice of Appeal was mailed via LBC.43
And even if we, in the interest of justice, give due course to the
appeal despite its late filing, the result would still be the same. The
appeal would still be denied for lack of merit.
The Decision dated August 30, 1999 is already final and executory.
An action for revival of judgment is a new and independent
action.44 It is different and distinct from the original judgment
sought to be revived or enforced. 45 As such, a party aggrieved by a
decision of a court in an action for revival of judgment may appeal
the decision, but only insofar as the merits of the action for revival
is concerned. The original judgment, which is already final and
executory, may no longer be reversed, altered, or modified.46
PNB v. CIR, G.R. No. 172458, December 14, 2011
FACTS: On February 8, 2001, PNB filed with respondent
Commissioner of Internal Revenue (CIR) an administrative claim
for refund in the amount of ₱6,028,594.00, which were payments
made in excess of its income tax liability for 1998.
As BIR did not act upon PNB’s claim for refund, PNB, on March
30, 2001, filed with the Second Division of the Court of Tax
Appeals (CTA Division) a Petition for Review.
In his Answer,[7] the CIR alleged that PNB’s claim for
refund/tax credit is subject first to an investigation and that it failed
to establish its right to a refund.
On May 19, 2003, the BIR issued in PNB’s favor Tax
Credit Certificate No. SN 023837 for ₱4,154,353.42, leaving a
balance of ₱1,874,240.58 out of PNB’s total claim of
₱6,028,594.00.  PNB then informed the CTA Division of such tax
credit certificate, and manifested that its acceptance was without
prejudice to recovering the balance of its total claim.[9]
 
Consequently, the CIR filed a Motion, [10] asking that he be allowed
to present evidence on PNB’s excluded claim.  The CIR argued
that the amount of ₱1,874,240.58 was disallowed because it was
not remitted to the BIR,
On August 11, 2005, the CTA Division rendered its Decision
ordering a REFUND in favor of herein petitioner in the
amount of ₱1,428,661.66 and disallowed eight transactions,
amounting to ₱445,578.92 which were already reported as income
for other years.
On September 14, 2005, PNB filed a Motion for Partial
Reconsideration,[15] asserting its entitlement to be refunded the
amount of ₱445,578.92, by explaining each transaction involved
and pinpointed by the CTA Division.  This however was still
denied by the CTA Division.
Aggrieved, PNB, filed a partial appeal by way of Petition for
Review[17] under Section 18 of Republic Act No. 9282[18]before the
8
CTA En Banc. This petition was received by the CTA En Banc on
December 27, 2005, four days beyond the additional 15 days
granted to PNB to file its petition.
Assailed Ruling
Thus, on January 27, 2006, the CTA En Banc issued a
Resolution[19]  denying due course and consequently dismissing
PNB’s petition because it was filed four (4) days late on December
27, 2005, the reglementary deadline for the timely filing of such
petition being December 23, 2005; it was not accompanied by the
duplicate original or certified true copies of the assailed Decision
and does not contain an Affidavit of Service and it not contain an
Affidavit of Service, in violation of Section 13, Rule 13 of the
Rules of Court. Said the CA:
 
In the case of Policarpio vs. Court of Appeals, 269 SCRA 344, 351,
the Supreme Court did not hesitate to dismiss the petition for
failure to attach an affidavit of service.
 
Lastly, Section 7 of Rule 43 of the Rules of Court provides that:
 
            SEC. 7.  Effect of failure to comply with requirements.- The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other lawful
fees, the deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.”
PNB asserted that its petition was filed on December 23,
2005, which was the last day of the additional 15-day period
granted by the CTA En Banc, via LBC Express, as shown by the
copy of LBC Official Receipt No. 12990350[21] dated December
23, 2005.  PNB explained that its counsel, Atty. Flerida P. Zaballa-
Banzuela, accompanied by her administrative assistant, tried to
personally file the petition with the CTA En Banc on December
23, 2005.  However, PNB claimed, that due to heavy traffic, Atty.
Zaballa-Banzuela arrived at the CTA office in Quezon City at 4:30
p.m., just as the CTA personnel were leaving the CTA premises in
their shuttle bus.[22]
 
PNB attached to its Motion the Affidavit [23] of Christopher
Sarmiento, the Security Guard who was then assigned at the CTA
main gate.  Sarmiento averred that he did not allow Atty. Zaballa-
Banzuela to enter the CTA compound because there was no one
left to receive her document.  He also alleged that Atty. Zaballa-
Banzuela even tried to ask some of the CTA personnel who were
on board the CTA shuttle that passed her by, if they could receive
her document, but they declined.  This was corroborated by Atty.
Zaballa-Banzuela’s administrative assistant, Macrina J. Cataniag,
in her Affidavit,[24] also annexed to PNB’s Motion.
 
PNB argued that while its petition was deposited with
LBC Express on December 23, 2005, very well within the
reglementary period, CTA En Banc received it only on December
27, 2005, as December 24 to 26, 2005 were holidays.[25]
On April 19, 2006, the CTA En Banc denied PNB’s
motion for lack of merit. The CTA En Banc ratiocinated in this
wise:  
It is a jurisprudential rule that the date [of] delivery of
pleadings to a private letter-forwarding agency is not to be
considered as the date of filing thereof in court, and that in such
cases, the date of actual receipt by the court, and not the date of
delivery to the private carrier, is deemed the date of filing of that
pleading (Benguet Electric Corporation, Inc. vs. NLRC, 209 SCRA
60-61).  Clearly, the present Petition For Review was filed four (4)
days late.
Hence, the instant case.
ISSUE: whether or not this Court should require the CTA En
Banc to give due course to C.T.A. E.B. No. 145 despite PNB’s
failure to comply with the formal requirements of the Revised
Rules of the Court of Tax Appeals and the Rules of Court in filing
a petition for review with the CTA En Banc.
HELD:
Petition was filed late
 
It is stated under Section 3, Rule 1 of the Revised Rules
of the Court of Tax Appeals that the Rules of Court shall apply
suppletorily.  Thus, the manner in which petitions are filed before
the CTA is also covered by the relevant provision of the Rules of
Court, to wit:
          Rule 13. x x x.
Sec. 3. Manner of filing.  The filing of
pleadings, appearances, motions, notices, orders,
judgments and all other papers shall be made by
presenting the original copies thereof, plainly
indicated as such, personally to the clerk of court
or by sending them by registered mail.  In the
first case, the clerk of court shall endorse on the
pleading the date and hour of filing.  In the
second case, the date of the mailing of motions,
pleadings, or any other papers or payments or
deposits, as shown by the post office stamp on
the envelope or the registry receipt, shall be
considered as the date of their filing, payment,
or deposit in court.  The envelope shall be
attached to the record of the case.  (Emphases
ours.)
 
To recall, PNB filed its petition with the CTA En
Banc four days beyond the extended period granted to it to file
such petition.  PNB argues that it was filed on time since it was
mailed on the last day of the extended period, which was on
December 23, 2005.  It has been established that a pleading “filed
by ordinary mail or by private messengerial service x x x is
deemed filed on the day it is actually received by the court, and not
on the day it was mailed or delivered to the messengerial
service.”[34]  In Benguet Electric Cooperative, Inc. v. National
Labor Relations Commission,[35] we said:
 
The established rule is that the date of delivery of
pleadings to a private letter-forwarding agency is
not to be considered as the date of filing thereof
in court, and that in such cases, the date of actual
receipt by the court, and not the date of delivery
to the private carrier, is deemed the date of filing
of that pleading.[36]
 
It is worthy to note that PNB already asked for an
additional period of 15 days within which to file its petition for
review with the CTA En Banc.  This period expired on December
23, 2005.  Knowing fully well that December 23, 2005 not only
fell on a Friday, followed by three consecutive non-working days,
but also belonged to the busiest holiday season of the year, PNB
should have exercised more prudence and foresight in filing its
petition. 
 
It is, however, curious why PNB chose to risk the holiday
traffic in an effort to personally file its petition with the CTA En
Banc, when it already filed a copy to the other party, the
CIR, via registered mail.[37]  Considering the circumstances, it
would have been more logical for PNB to send its petition to the
CTA En Banc on the same occasion it sent a copy to the CIR,
especially since that day was already the last day given to PNB to
file its petition.  Moreover, PNB offered no justification as to why
it sent its petition via ordinary mail instead of registered
mail.  “Service by ordinary mail is allowed only in instances where
no registry service exists.”[38]  Rule 13, Section 7 reads:
Sec. 7. Service by mail.  Service by
registered mail shall be made by depositing the
9
copy in the post office, in a sealed envelope,
plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if
known, with postage fully pre-paid, and with
instructions to the postmaster to return the mail
to the sender after ten (l0) days if undelivered.  If
no registry service is available in the locality
of either the sender or the addressee, service
may be done by ordinary mail. (Emphasis
ours.)
 
Petition was not accompanied by the
required duplicate originals or certified
true copies of the decision and resolution
being assailed, and Affidavit of Service
  
          The following provisions are instructive:
 
Section 2, Rule 6 of the Revised Rules of the Court of
Tax Appeals:
 
SEC. 2. Petition for review; contents. –
The petition for review shall contain allegations
showing the jurisdiction of the Court, a concise
statement of the complete facts and a summary
statement of the issues involved in the case, as
well as the reasons relied upon for the review of
the challenged decision.  The petition shall be
verified and must contain a certification against
forum shopping as provided in Section 3, Rule
46 of the Rules of Court.  A clearly legible
duplicate original or certified true copy of the
decision appealed from shall be attached to
the petition. (Emphasis supplied.)
 
Section 4(b), Rule 8 of the Revised Rules of the Court of
Tax Appeals:
 Sec. 4(b) An appeal from a decision or resolution of the Court in
Division on a motion for reconsideration or new trial shall be taken
to the Court by petition for review as provided in Rule 43 of the
Rules of Court.  The Court en banc shall act on the appeal.
 
Sections 6, Rule 43 of the Rules of Court:
 
Sec. 6. Contents of the petition. The
petition for review shall (a) state the full names
of the parties to the case, without impleading the
court or agencies either as petitioners or
respondents; (b) contain a concise statement of
the facts and issues involved and the grounds
relied upon for the review; (c) be accompanied
by a clearly legible duplicate original or a
certified true copy of the award, judgment,
final order or resolution appealed
from, together with certified true copies of such
material portions of the record referred to therein
and other supporting papers; and (d) contain a
sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule
42. The petition shall state the specific material
dates showing that it was filed within the period
fixed herein. (Emphasis ours.)
This Court has already upheld the mandatory character of
attaching duplicate originals or certified true copies of the assailed
decision to a petition for review. [39]  Moreover, pursuant to Section
7, Rule 43 of the Rules of Court, non-compliance with such
mandatory requirement is a sufficient ground to dismiss the
petition, viz:
            Sec. 7. Effect of failure to comply with
requirements. The failure of the petitioner to
comply with any of the foregoing requirements
regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and
the documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof.  (Emphasis ours.)
 
          Anent the failure to attach the Affidavit of Service,
Section 13, Rule 13 of the Rules of Court provides:
 
Sec. 13. Proof of service.  Proof of
personal service shall consist of a written
admission of the party served, or the official
return of the server, or the affidavit of the party
serving, containing a full statement of the date,
place and manner of service. If the service is by
ordinary mail, proof thereof shall consist of an
affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service
is made by registered mail, proof shall be made
by such affidavit and the registry receipt issued
by the mailing office.  The registry return card
shall be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
 
          Although the failure to attach the required affidavit of
service is not fatal if the registry receipt attached to the petition
clearly shows service to the other party, [40] it must be remembered
that this was not the only rule of procedure PNB failed to
satisfy.  InSuarez v. Judge Villarama, Jr.[41] we said: 
 
It is an accepted tenet that rules of
procedure must be faithfully followed except
only when, for persuasive and weighting reasons,
they may be relaxed to relieve a litigant of an
injustice commensurate with his failure to
comply with the prescribed
procedure.  Concomitant to a liberal
interpretation of the rules of procedure, however,
should be an effort on the part of the party
invoking liberality to adequately explain his
failure to abide by the rules.[42]
 
 
This Court agrees with the CTA En Banc that PNB has not
demonstrated any cogent reason for this Court to take an exception
and excuse PNB’s blatant disregard of the basic procedural rules in
a petition for review.  Furthermore, the timely perfection of an
appeal is a mandatory requirement.  One cannot escape the rigid
observance of this rule by claiming oversight, or in this case, lack
of foresight.  
Sec. 4. Papers required to be filed and served
Section 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the complaint,
written motion, notice, appearance, demand, offer of judgment or
similar papers shall be filed with the court, and served upon the
parties affected. (2a)
See: Sec. 1, Rule 36
Section 1. Rendition of judgments and final orders. — A judgment
or final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of the court. (1a)
10
Sec. 5. Modes of service
Section 5. Modes of service. — Service of pleadings motions,
notices, orders, judgments and other papers shall be made either
personally or by mail. (3a)
Aberca v. Ver, G.R. No. 166216, March 14, 2012
FACTS: several suspected subversives who were arrested and
detained by the military filed a complaint for damages with the
Regional Trial Court of Quezon City against Gen. Fabian Ver, then
AFP Chief of Staff and other subordinate officers. They allege they
were tortured during their detention. Defendants were then
represented by Solicitor General Estelito Mendoza who filed a
motion to dismiss.
The case was dismissed but EDSA Revolution happened during
the pendency of petitioner’s certiorari proceedings before the
Supreme Court. The Supreme Court annulled the order dismissing
the case and remanded the case to the trial court for further
proceedings.
However, trial could not proceed immediately because on June 11,
1988, the record of the case was destroyed when fire razed the City
Hall of Quezon City. It was only on October 9, 1989 when
plaintiffs-appellees sought a reconstitution of the record of the
case. But the defendants were never served of the decision of the
Supreme Court and the new Solicitor General declined to represent
the defendants since it is not authorized to represent a public
official at any stage of a criminal case or in a civil suit for damages
arising from a felony.
Plaintiffs-appellees filed a motion to declare defendants-appellants
in default which was denied because the defendants were not duly
notified of the decision of the Supreme Court. For failure of the
petitioners to submit the addresses of the defendants, the court
dismissed the case but it later reinstated the case and approved
plaintiffs-appellees’ request to serve the notice to file answer or
responsive pleading by publication.
 
In a compliance dated September 12, 1991, plaintiffs-appellees
informed the trial court that the following notice was published in
the Tagalog newspaper BALITA in its issues of August 29,
1991 and September 5, 1991
No answer was filed by defendants-appellants within the period
stated in the notice. On motion of plaintiffs-appellees, the trial
court in its order dated December 5, 1991 declared defendants-
appellants in default and directed plaintiffs-appellees to present
their evidence ex-parte
Ruling of the RTC
 
On February 19, 1993, the RTC handed down a decision in favor
of the petitioners
Subsequently, respondents Col. Fidel Singson (Col.
Singson), Lt. Col. Panfilo M. Lacson (Lt. Col. Lacson), and Col.
Rolando Abadilla (Col. Abadilla) filed their Omnibus Motion
praying as follows: 1) that the order of default dated December 5,
1991 be reversed and set aside; 2) that the decision dated February
19, 1993 be reversed and set aside; 3) that the entire proceedings
be declared null and void; and 4) that they be given fifteen (15)
days from notice to file answer to the complaint and present their
evidence. Col. Gerardo B. Lantoria (Col. Lantoria) filed his own
Motion for Reconsideration.
 
On his part, respondent Maj. Rodolfo Aguinaldo (Maj.
Aguinaldo) failed to file a timely notice of appeal so he filed a
Petition for Relief from Judgment
The Omnibus Motion of Col. Singson, Lt. Col. Lacson
and Col. Abadilla; the Motion for Reconsideration of Col. Gerardo
Lantoria; and the Petition for Relief from Judgment of Maj.
Aguinaldo were denied by the RTC. [6] Aggrieved, the said
respondents elevated their case to the CA.
Maj. Aguinaldo argued that he was deliberately deprived of the
opportunity to be heard and put up his defense, while Col. Singson,
Lt. Col. Lacson and Col. Abadilla
CA Ruling
On July 31, 2003, the CA rendered a decision reversing and setting
aside the RTC decision and ordering the case remanded to the RTC
for further proceedings. The CA ruled, among others, that the RTC
committed four (4) errors in declaring the respondents in default
and proceeding to hear the case. The RTC committed its first
error when it abandoned the proper modes of service of notices,
orders, resolutions or judgments as the petitioners failed to comply
with its order dated August 17, 1990, directing them to report the
addresses and whereabouts of the respondents so that they could be
properly notified.
 
          The second error was the failure of the RTC to avail of
substituted service after failing to effect personal service or service
by mail. It perpetrated its third error when it authorized service by
publication after dismissing the case for failure of the petitioners to
furnish the current addresses of the respondents. The CA reasoned
out that there was nothing in the rules which would authorize
publication of a notice of hearing to file answer and for what was
authorized to be published were summons and final orders and
judgments. The fourth error was committed when the respondents
were declared in default because they were not duly notified and,
therefore, were denied due process.
Not satisfied, the petitioners come to this Court praying for the
reversal and setting aside of the CA decision
The petitioners claim that the RTC did not err in declaring the
respondents in default and in allowing them to present evidenceex-
parte; that the respondents were represented by the OSG from
1983 up to December 11, 1990 when the latter withdrew its
appearance from the case; that after the respondents had appeared,
thru the OSG, by filing a motion to dismiss, the petitioners were
under no obligation to track down the respondents’ addresses since
the Rules of Court provide that once a litigant is represented by
counsel, all notices, motions and pleadings must be sent to him as
counsel of record; that it is a matter of record that the OSG was
furnished copies of all court orders and the petitioners’ pleadings
for the period it remained as the respondents’ counsel of record or
from 1983 until the OSG withdrew on December 11, 1990; that as
counsel of record, the OSG was duty-bound to file the
respondents’ answer to the complaint within 15 days from notice
that it was reinstated by this Court and the case was remanded to
the RTC for further proceedings; and that despite having received
copies of this Court’s decision in G.R. No. 69866 on or about April
20, 1988 and despite having been duly notified of the finality of
said decision by means of this Court’s Entry of Judgment, the OSG
did not file any answer or seek an extension of time to do so.
 
The petitioners further argue that as early as May 1988, when this
Court’s decision became final and executory and the respondents
received notice thereof through their counsel of record, it was
incumbent upon them to have answered the complaint within the
period provided by the Rules of Court.
Also, that the rule on service of summons by means of publication
applies to service of summons by publication, not to notices to file
answer by publication; that while service of summons by
publication entails acquiring jurisdiction over the person of the
defendant, it was already obtained over the respondents in this case
by their voluntary appearance through counsel and their act of
filing a motion to dismiss on substantive grounds; that substituted
service was an exercise in futility because the respondents were no
longer holding the positions they were holding at the time the
petition was filed and, therefore, could not be reached at the
11
addresses indicated on the complaint; that the only remaining
option was to notify the respondents by publication
ISSUE: WON there was proper service of the order
HELD:
Rule 13
SEC. 5. Modes of service.—Service of
pleadings, motions, notices, orders, judgments
and other papers shall be made either personally
or by mail.
SEC. 6. Personal service.—Service of
the papers may be made by delivering personally
a copy to the party or his counsel, or by leaving
it in his office with his clerk or with a person
having charge thereof. If no person is found in
his office, or his office is not known, or he has
no office, then by leaving the copy, between the
hours of eight in the morning and six in the
evening, at the party’s or counsel’s residence, if
known, with a person of sufficient age and
discretion then residing therein.
 
SEC. 7. Service by mail.—Service by
registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office,
if known, otherwise at his residence, if known,
with postage fully prepaid, and with instructions
to the postmaster to return the mail to the sender
after ten (10) days if undelivered. If no registry
service is available in the locality of either the
sender or the addressee, service may be done by
ordinary mail.
 
SEC. 8. Substituted service.—If service
of pleadings, motions, notices, resolutions,
orders and other papers cannot be made under
the two preceding sections, the office and place
of residence of the party or his counsel being
unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure
of both personal service and service by mail. The
service is complete at the time of such delivery.
 
 
The above rules, thus, prescribe the modes of service of
pleadings, motions, notices, orders, judgments, and other papers,
namely: (1) personal service; (2) service by mail; and (3)
substituted service, in case service cannot be effected either
personally or by mail.
 
The Rules of Court has been laid down to insure the
orderly conduct of litigation and to protect the substantive rights of
all party litigants. It is for this reason that the basic rules on the
modes of service provided under Rule 13 of the Rules of Court
have been made mandatory and, hence, should be strictly followed.
In Marcelino Domingo v. Court of Appeals, [14] the Court wrote:
 
Section 11, Rule 13 of the Rules of Court states:
 
SEC. 11. Priorities in modes of service
and filing. — Whenever practicable, the service
and filing of pleadings and other papers shall be
done personally. Except with respect to papers
emanating from the court, a resort to other
modes must be accompanied by a written
explanation why the service or filing was not
done personally. A violation of this Rule may be
cause to consider the paper as not filed.
 
Section 11 is mandatory. In Solar
Team Entertainment, Inc. v. Judge Ricafort, the
Court held that:
 
Pursuant x x x to Section 11 of Rule 13,
service and filing of pleadings and other papers
must, whenever practicable, be done personally;
and if made through other modes, the party
concerned must provide a written explanation as
to why the service or filing was not done
personally. x x x
Personal service and filing are preferred
for obvious reasons. Plainly, such should
expedite action or resolution on a pleading,
motion or other paper; and conversely, minimize,
if not eliminate, delays likely to be incurred if
service or filing is done by mail, considering the
inefficiency of postal service. Likewise, personal
service will do away with the practice of some
lawyers who, wanting to appear clever, resort to
the following less than ethical practices: (1)
serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for
instance, responsive pleadings or an opposition;
or (2) upon receiving notice from the post office
that the registered parcel containing the pleading
of or other paper from the adverse party may be
claimed, unduly procrastinating before claiming
the parcel, or, worse, not claiming it at all,
thereby causing undue delay in the disposition of
such pleading or other papers.
 
If only to underscore the mandatory
nature of this innovation to our set of adjective
rules requiring personal service whenever
practicable, Section 11 of Rule 13 then gives the
court the discretion to consider a pleading or
paper as not filed if the other modes of service or
filing were resorted to and no written
explanation was made as to why personal service
was not done in the first place. The exercise of
discretion must, necessarily, consider the
practicability of personal service, for Section 11
itself begins with the clause "whenever
practicable."
 
We thus take this opportunity to clarify
that under Section 11, Rule 13 of the 1997 Rules
of Civil Procedure, personal service and filing is
the general rule, and resort to other modes of
service and filing, the exception. Henceforth,
whenever personal service or filing is
practicable, in light of the circumstances of time,
place and person, personal service or filing
ismandatory. Only when personal service or
filing is not practicable may resort to other
modes be had, which must then be accompanied
by a written explanation as to why personal
service or filing was not practicable to begin
with. In adjudging the plausibility of an
explanation, a court shall likewise consider the
importance of the subject matter of the case or
the issues involved therein, and the prima facie
merit of the pleading sought to be expunged for
violation of Section 11. This Court cannot rule
otherwise, lest we allow circumvention of the
innovation introduced by the 1997 Rules in order
to obviate delay in the administration of justice.
 
xxxx
12
x x x [F]or the guidance of the Bench
and Bar, strictest compliance with Section 11
of Rule 13 is mandated. [Emphasis supplied]
 
In the case at bench, the respondents were completely
deprived of due process when they were declared in default based
on a defective mode of service – service of notice to file answer by
publication. The rules on service of pleadings, motions, notices,
orders, judgments, and other papers were not strictly followed in
declaring the respondents in default. The Court agrees with the CA
that the RTC committed procedural lapses in declaring the
respondents in default and in allowing the petitioners to present
evidenceex-parte.
 
A review of the records discloses that after the Court
rendered its April 15, 1988 Decision in G.R. No. 69866, annulling
the RTC orders dated November 8, 1983, May 11, 1984 and
September 21, 1984 and ordering the remand of the case to the
RTC for further proceedings, the RTC issued an order [15] dated
August 17, 1990 directing the petitioners to report the addresses
and whereabouts of the respondents so that they would be properly
notified of the proceedings. This directive was issued by the RTC
considering that the respondents’ counsel of record, the OSG,
could no longer represent them and because the respondents were
no longer holding official government positions because of a
change in government brought about by the 1986 EDSA
Revolution.  This order was likewise made in response to the
motion[16] filed by the petitioners praying that the respondents be
required to file their answer.
 
Instead of complying with the RTC’s directive to report
the respondents’ addresses and whereabouts, the petitioners filed a
motion[17] dated September 4, 1990 to declare the respondents in
default. On December 27, 1990, the RTC denied the petitioners’
default motion because the respondents were not duly notified of
the April 15, 1988 Decision of this Court and the OSG no longer
wanted to represent them. The RTC likewise ordered the
petitioners to comply with its August 17, 1990 Order, otherwise,
the case would be archived and eventually dismissed. On February
1, 1991, the RTC denied the petitioners’ motion for
reconsideration and on March 7, 1991, it issued an order
dismissing the case without prejudice.
Surprisingly, on June 4, 1991, the RTC issued an
order[18] setting aside its March 7, 1991 Order and reinstating the
case. It directed the petitioners, among others, to cause the
publication of a notice on the respondents to file answer or
responsive pleading. After the petitioners complied with the
publication requirements, the RTC issued the order
dated December 5, 1991 declaring the respondents in default and
directing the petitioners to present evidence ex-parte.
 
As correctly observed by the CA, the RTC’s August 17,
1990 Order was an attempt to serve a notice to file answer on the
respondents by personal service and/or by mail. These proper and
preferred modes of service, however, were never resorted to
because the OSG abandoned them when the petitioners failed to
comply with the August 17, 1990 RTC order requiring them to
report the addresses and whereabouts of the respondents.
Nevertheless, there was still another less preferred but proper mode
of service available – substituted service - which is service made
by delivering the copy to the clerk of court, with proof of failure of
both personal service and service by mail. Unfortunately, this
substitute mode of service was not resorted to by the RTC after it
failed to effect personal service and service by mail. Instead, the
RTC authorized an unrecognized mode of service under the Rules,
which was service of notice to file answer by publication.
 
 Considering the fact that the OSG could no longer
represent the respondents, the RTC should have been more patient
in notifying the respondents through personal service and/or
service by mail. It should not have simply abandoned the preferred
modes of service when the petitioners failed to comply with
its August 17, 1990 order with the correct addresses of the
respondents. More so, it should not have skipped the substituted
service prescribed under the Rules and authorized a service of
notice on the respondents to file answer by publication.
 
 In view of the peculiar circumstances surrounding the
case, the RTC should have instead directed the petitioners to exert
diligent efforts to notify the respondents either personally or by
registered mail. In case the preferred modes were impractical, the
Court should have required the petitioners to at least report in
writing why efforts exerted towards personal service or service by
mail failed. In other words, a convincing proof of an impossibility
of personal service or service by mail to the respondents should
have been shown first.  The RTC, thus, erred when it ruled that the
publication of a notice to file answer to the respondents
substantially cured the procedural defect equivalent to lack of due
process. The RTC cannot just abandon the basic requirement of
personal service and/or service by mail.
 
 
 
At any rate, the Court is of the view that personal service
to the respondents was practicable under the circumstances
considering that they were well-known persons who used to
occupy high government positions.
 
To stress, the only modes of service of pleadings,
motions, notices, orders, judgments and other papers allowed by
the rules are personal service, service by mail and substituted
service if either personal service or service by mail cannot be
made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of
Court. Nowhere under this rule is service of notice to file answer
by publication is mentioned, much less recognized.
 
 Furthermore, the Court would like to point out that
service by publication only applies to service of summons stated
under Rule 14 of the Rules of Court where the methods of service
of summons in civil cases are: (1) personal service; [19] (2)
substituted service;[20] and (3) service by publication. [21] Similarly,
service by publication can apply to judgments, final orders and
resolutions as provided under Section 9, Rule 13 of the Rules of
Court, as follows:
SEC. 9. Service of judgments, final
orders or resolutions. –Judgments, final orders or
resolutions shall be served either personally or
by registered mail. When a party summoned
by publication has failed to appear in the
action, judgments, final orders or
resolutions against him shall be served upon
him also by publication at the expense of the
prevailing party. [Emphasis supplied]
 
As correctly ruled by the CA:
 
Its third error was when it authorized
service by publication after initially dismissing
the case for failure of plaintiffs-appellees to
furnish the current address of defendants-
appellants. There is, however, nothing in the
Rules that authorizes publication of a notice of
hearing to file answer. What is authorized to be
published are: (1) summons, and (2) final orders
and judgments.
 
 
Xxx                                       xxx             
                       xxx
 
 
The above-quoted provision cannot be
used to justify the trial court’s action in
authorizing service by publication. Firstly, what
13
was published was not a final order or judgment
but a simple order or notice to file answer.
Secondly, even granting that the notice to file
answer can be served by publication, it is explicit
in the Rule that publication is allowed only if the
defendant-appellant was summoned by
publication. The record is clear that defendants-
appellants were not summoned by publication.
 
On this point, the petitioners argue that the publication
was a valid and justified procedure because following the ruling of
the RTC, it was “an extra step to safeguard the interest of the
defendants done pursuant to the inherent power of the courts to
control its proceedings to make them comfortable to law and
justice.” The petitioners further argue that “the defendants in a
civil case cannot seize control of the proceedings or cause them to
be suspended indefinitely by the simple expedient of not filing
their answers or by feigning ignorance of the proceedings. All
these could have been avoided had the defendants not been so
inexplicably complacent and utterly lacking in ordinary prudence.”
 
The Court is not convinced.
 
As already discussed above, the basic rules on modes of
service of pleadings, motions, notices, orders, judgments, and other
papers are mandatory in nature and, therefore, must be strictly
observed. The Court is not unaware of the inherent power of courts
to control its proceedings. Nonetheless, the exercise of such
inherent power must not violate basic court procedures. More
importantly, it must not disregard one’s basic constitutional right to
procedural due process.
 
This was precisely the reason for the RTC’s denial of the
petitioner’s default  motion in its August 17, 1990 Order, and for
the eventual dismissal of the case in its December 27, 1990 Order.
 
It must be noted that as the RTC orders stated, the
respondents were not notified of the April 15, 1988 Decision of
this Court, which ordered the re-opening and remanding of this
case to the RTC.  They were neither notified of the reconstitution
proceedings that took place pertaining to the burned records of the
case.  The RTC further stated that the respondents were no longer
holding their official government positions and that they were no
longer represented by the OSG on account of the change in
government.  In other words, the respondents had no counsel of
record and no notice of subsequent proceedings.  In short, due
process was absent.
 
Next, the court records got burned during the June 11,
1988 fire that hit the Quezon City Hall where the records were
kept. OnMarch 12, 1990, the RTC granted the petitioners’ petition
for reconstitution. Again, the records do not show that the RTC
initiated extra efforts to notify the respondents about the
reconstitution proceedings. The entire records of this case tend to
show that the respondents were completely out of the picture until
after the promulgation of the RTC decision.
 
On countless occasions, the Court ruled that, generally, judgments
by default are looked upon with disfavor and are frowned upon as
contrary to public policy.
Sec. 6. Personal service
Section 6. Personal service. — Service of the papers may be made
by delivering personally a copy to the party or his counsel, or by
leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is
not known, or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of sufficient
age and discretion then residing therein. (4a)
Garrucho v. Court of Appeals, G.R. No. 143791, January 14,
2005 (Supra.)
Sec. 7. Service by mail
Section 7. Service by mail. — Service by registered mail shall be
made by depositing the copy in the post office in a sealed
envelope, plainly addressed to the party or his counsel at his office,
if known, otherwise at his residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return the mail
to the sender after ten (10) days if undelivered. If no registry
service is available in the locality of either the senders or the
addressee, service may be done by ordinary mail. (5a; Bar Matter
No. 803, 17 February 1998)
Sec. 8. Substituted service
Section 8. Substituted service. — If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under
the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of
both personal service and service by mail. The service is complete
at the time of such delivery. (6a)
Thermochem v. Naval, G.R. No. 131541, October 20, 2000
FACTS: Eduardo Edem, taxi driver of Luring Taxi owned by
respondent Leonora Naval, was traversing a U-turn when it was hit
by a Nissan Pathfinder driven by petitioner Jerome Casto .
Private respondent, as owner of the taxi, filed a damage suit
against petitioner, Thermochem Incorporated, as the owner of the
Nissan Pathfinder, and its driver, petitioner Jerome Castro. After
trial, the lower court adjudged petitioner Castro negligent and
ordered petitioners, jointly and severally, to pay private respondent
damages.
On appeal, the Court of Appeals affirmed the judgment of the
court a quo.[4] Hence, this petition for review on certiorari. The
petition was denied on February 2, 1998 for failure to submit an
explanation why no personal service of copies of certain pleadings
was made as required by Rule 13, Section 11 of the 1997 Rules of
Civil Procedure.[5] Upon petitioners' motion for reconsideration, the
petition was reinstated and private respondent was required to file
her Comment in a Resolution dated June 22, 1998.[6] A copy of the
said Resolution was sent by registered mail to private respondent's
counsel but the same was returned to sender. [7] In a separate
Resolution issued on the same date, this Court ordered that a copy
of the June 22, 1998 Resolution be served personally on private
respondent's counsel.[8] As the said Resolution was also returned
unserved, "the Court Resolved to consider the said Resolution as
SERVED."[9] After more than a year, no Comment has been
filed. Considering that private respondent was given only ten (10)
days to file her Comment, that period had already lapsed ten days
after the June 23, 1999 Resolution which stated that the June 22,
1998 resolution as "served".
ISSUE: WON the petitioner is liable for its negligence
HELD: Yes. the assailed decision is MODIFIED. Petitioners are
ordered to pay, jointly and severally, to private respondent the
amount of P23,925.00 as actual damages. All other awards are
DELETED.
Service of notice or other pleadings which are required by the rules
to be furnished to the parties must be made on their last address on
record. If they are represented by counsel, such notices shall be
sent instead to the counsel's last given address on record in the
absence of a proper and adequate notice to the court of a change of
14
address,[10] unless service upon the party himself is ordered by the
court.[11] It is the party and his counsel's responsibility to device a
system for the receipt of mail intended for them[12] just as it is the
duty of counsel to inform the court of a change in his address. In
the case at bar, private respondent's counsel never notified the
Court of any change of his address or whether he no longer holds
office in his last address of record. Neither was the Court informed
if his ties with his client has been severed. Insofar as the Court is
concerned, the last address on record is the place where all notices
shall be served until the Court is officially informed to the
contrary. What is the effect of the failure of a private respondent to
comply with a court order to file Comment?
Courts are given the option to dispense with the filing of the
Comment and consider the case as deemed submitted for
decision. Under Rule 46, Section 7 of the 1997 Rules of Civil
Procedure,[13] when the respondent in an original action filed with
the court fails to file its comment, the case may be decided on the
basis of the evidence on record without prejudice to disciplinary
action against the disobedient party. Concomitant thereto is the
rule that pursuant to Rule 51, Section 1(B)(1), [14] where no
comment is filed upon the expiration of the period to comment in
an original action or a petition for review, the case shall be deemed
submitted for decision. Both provisions are applicable to a petition
for review filed with the Supreme Court as provided in Rule 56,
Section 2(a) of the Rules.[15] Moreover, a lawyer who fails to
submit the required Comment manifests willful disobedience to a
lawful order of the Supreme Court, a clear violation of the Canon
of Professional Ethics.[16] Counsel must remember that his actions
and omissions are binding on his client. [17] He should not neglect
legal matters entrusted to him as his negligence therefrom shall
render him liable.[18]
Cubar v. Mendoza, G.R. No. 55035, February 23, 1983
FACTS: Petitioners filed a complaint with the Court of First
Instance of Cebu, assigned to Branch V thereof, then presided by
Judge Mariano A. Zosa, docketed as Civil Case No. R- 15607, for
the nullification of certain documents.
Petitioners signed a document they were told was for a right of
way for the government with the inducement that once operational,
each landowner shall be entitled to a royalty of P.30 per ton of
minerals loaded in trucks passing through their respective lots,
which documents, however, turned out to be alleged authorizations
for entry into their 'lets by private respondents for the purpose of
exploring rich rock phosphate deposits, and on the basis of said
documents, private respondents were granted by the Bureau of
Mines permits to exploit and develop the mineral resources in
petitioners' land to the exclusion of the latter.
After hearing on the merits and the case submitted for decision, the
trial court rendered judgment on October 1, 1979 declaring the
subject documents null and void, and adjudging private
respondents liable to pay damages to petitioners. A copy of said
decision was served to Atty. Romeo Gonzaga, private respondents'
counsel of record and was received his wife at his given address on
November 23, 1979.
No appeal having been duly perfected within the reglementary
period provided by law, petitioners filed on January 7, 1980 a
motion for the issuance of a writ of execution, which was granted
by the trial court in its Order of January 8, 1980,
On January 12, 1980 or four days after the issuance of the order of
execution, Branch V became vacant with the appointment of Judge
Zosa to the Court of Appeals.
On January 14, 1980, private respondents, through a new lawyer,
Atty. Ponciano H. Alivio, filed a motion for reconsideration of the
Order of January 8, 1980 and to quash the writ of execution, on the
ground that the decision is not yet final and executory for lack of
valid service thereof.
Said motion was
opposed by petitioners, who insisted that said decision is already
final and executory, and Atty. Alivio has no personality to file said
motion for want of formal substitution of counsel as required by
the Rules.
Since Branch V was then vacant, the motion for reconsideration
was resolved by Branch VI, presided over by the respondent judge
who, on January 28, issued the herein assailed Order setting aside
the Order of execution and quashing the writ issued thereunder.
Petitioners' motion for reconsideration filed against the above
order of respondent judge having been denied, this petition was
filed.
ISSUE: WON there was valid service
HELD:
We find the petition to be meritorious. That the decision of the trial
court was received by the wife of Atty. Romeo Gonzaga, private
respondents' counsel of record at his given address on November
23, 1979, is not disputed. It is likewise not disputed that said wife
has been receiving prior notices of the case for her husband at the
office of the latter, who had always acted as if he had received said
notices himself for he had duly complied therewith. With these
facts, no other ruling can be had but that the service of the decision
in question is valid and binding. It is fully being in accordance
with Rule 13, Section 4, on personal service, said wife being of
sufficient discretion to receive notice of final judgment.
Private respondents argue that said service is not valid because
Atty. Gonzaga had left Cebu City, his address of record, and has
resided in Legaspi City. It is already well settled rule that when a
party is represented by counsel, notice should be made upon the
counsel of record 1 at his given address, to which notices of all
kind emanating from the court should be sent in the absence of a
proper and adequate notice to the court of a change of
address. 2 Petitioner's argument, likewise, fails to consider the need
of observing a legal formality before a counsel of record may be
considered relieved of his responsibility as such counsel on
account of withdrawal. This legal formality is that a lawyer's
withdrawal as counsel must be made in a formal petition filed in
the case, without which, notice of judgment rendered in the case
served on the counsel of record, is, for all legal purposes notice to
the client, the date of receipt of which is considered the starting
point from which the period of appeal prescribed by law shall
begin to run. 3 Not having withdrawn formally as counsel in the
case, Atty. Romeo Gonzaga continued to be the counsel of
record 4 and was, for all legal purpose, private respondents'
attorney upon whom the court's processes may be served, as they
were in fact duly served.
Consequently, the decision of the trial court, copy of which was
served upon respondents' counsel on November 23, 1979, is
already final and executory at the time the order of execution was
issued on January 8, 1980, no appeal having been taken therefrom
within the reglementary period provided by law. Time and again,
this court has ruled that once a judgment becomes final and
executory, the prevailing party can have it executed as a matter of
right, and the granting of execution becomes a ministerial duty of
the court. 5 Therefore, respondent judge gravely abused his
discretion in issuing the herein questioned order, in the absence of
any justification, both legal and factual, that would warrant the stay
of execution.
The claim of private respondents that the present petition was filed
late 2 months and 29 days after the assailed order was issued, is
without any merit. This is a special civil action of certiorari and
15
prohibition which may be filed within a reasonable period, no time
frame for its filing having been fixed by Rule 65, Rules of Court.
Mojar v. Agro Commercial Security, G.R. No. 187188, June 27,
2012
FACTS: Petitioners were security guards employed by respondent
assigned to the various branches of the Bank of Commerce in
Pangasinan, La Union and Ilocos Sur.. They failed to report to their
new assignments in Metro Manila prompting respondents to send a
letter requiring a written explanation.
Petitioners then filed a complaint for illegal dismissal against
respondent and the Bank of Commerce, Dagupan Branch, before
the National Labor Relations Commission (NLRC). Petitioners
claimed, among others, that their reassignment was a scheme to
sever the employer-employee relationship and was done in
retaliation for their pressing their claim for salary differential in a
prior case and that the transfer to Manila was inconvenient and
prejudicial, since they would incur additional expenses for board
and lodging.
The LA ruled in favor of petitioners. On appeal, the NLRC
affirmed with modification by absolving the Bank.
On 23 January 2008, respondent filed a Motion for Extension to
file a Petition for Certiorari before the CA. In a Resolution dated
20 February 2008, the latter granted the Motion for Extension,
allowing respondent until 10 February 2008 within which to file its
Petition. On 9 February 2008, respondent filed its Petition for
Certiorari before the appellate court.
On 30 June 2008, the CA issued a Resolution noting that no
comment on the Petition had been filed, and stating that the case
was now deemed submitted for resolution.
On 21 July 2008, the CA rendered its Decision in favor of
respondent ruling that the transfer was a valid exercise of
management prerogative.
On 1 August 2008, petitioner Mojar filed a Manifestation [8] before
the CA, stating that he and the other petitioners had not been
served a copy of the CA Petition. He also said that they were not
aware whether their counsel before the NLRC, Atty. Jose C.
Espinas, was served a copy thereof, since the latter had already
been bedridden since December 2007 until his demise on “25
February 2008.”[9] Neither could their new counsel, Atty. Mario G.
Aglipay, enter his appearance before the CA, as petitioners failed
to “get [the] folder from the office of Atty. Espinas, as the folder
can no longer be found.”[10]
Thereafter, petitioners filed a Motion to Annul Proceedings before
the CA on the ground of lack of jurisdiction. They argued that the
NLRC Decision had already attained finality, since the Petition
before the CA was belatedly filed, and the signatory to the
Certification of non-forum shopping lacked the proper authority.
The CA denied the Motion to Annul Proceedings.
Hence, this Petition.
 The Petition raised the following arguments: (1) There was no
proof of service attached to the Motion for Extension to file a
Petition for Certiorari before the CA; thus, both the Motion and the
Petition were mere scraps of paper. (2) Respondent purposely
intended to exclude petitioners from the proceedings before the CA
by omitting their actual addresses in the CA Petition, a mandatory
requirement under Section 3, Rule 46; in relation to Section 1,
Rule 65 of the Rules of Court. Further, respondent failed to prove
the valid service of its CA Petition upon petitioners’ former
counsel of record. (3) The CA was grossly ignorant of the law in
ignoring jurisprudence, which states that when the floating status
of an employee lasts for more than six months, the latter may be
considered to have been constructively dismissed.
ISSUE: WON the service was defective
HELD:
Affidavit of Service
Section 3, Rule 46 provides that the petition for certiorari should
be filed together with the proof of service thereof on the
respondent. Under Section 13, Rule 13 of the Rules of Court, if
service is made by registered mail, as in this case, proof shall be
made by an affidavit of the person mailing and the registry receipt
issued by the mailing office. Section 3, Rule 46 further provides
that the failure to comply with any of the requirements shall be
sufficient ground for the dismissal of the petition.
Petitioners allege that no affidavit of service was attached to the
CA Petition. Neither is there any in the copy of the CA Petition
attached to the instant Petition. In its Comment, respondent claims
that petitioners – through their counsel, Atty. Aglipay – can be
charged with knowledge of the pendency of the CA Petition. It
says that on April 2008, Atty. Aglipay filed before the NLRC an
Entry of Appearance and Motion for Execution Pending Appeal.
[16]
 However, petitioners merely indicated therein that they were
“respectfully mov[ing] for the execution pending appeal of the
Labor Arbiter’s decision dated 22 May 2006 affirmed by the
NLRC.”[17] There was no indication that they had been served a
copy of the CA Petition. No other proof was presented by
respondent to show petitioners’ actual receipt of the CA Petition.
In any case, this knowledge, even if presumed, would not – and
could not – take the place of actual service and proof of service by
respondent.
In Ferrer v. Villanueva,[18] petitioner therein failed to append the
proof of service to his Petition for Certiorari. Holding that this
failure was a fatal defect, the Court stated:
There is no question that petitioner
herein was remiss in complying with the
foregoing Rule. In Cruz v. Court of Appeals, we
ruled that with respect to motions, proof of
service is a mandatory requirement. We find
no cogent reason why this dictum should not
apply and with more reason to a petition for
certiorari, in view of Section 3, Rule 46 which
requires that the petition shall be filed “together
with proof of service thereof.” We agree with
the Court of Appeals that the lack of proof of
service is a fatal defect. The utter disregard of
the Rule cannot be justified by harking to
substantial justice and the policy of liberal
construction of the Rules. Technical rules of
procedure are not meant to frustrate the ends of
justice. Rather, they serve to effect the proper
and orderly disposition of cases and thus
effectively prevent the clogging of court dockets.
(Emphasis in the original)
Indeed, while an affidavit of service is
required merely as proof that service has been
made on the other party, it is nonetheless
essential to due process and the orderly
administration of justice.[19]
Be that as it may, it does not escape the attention of this Court that
in the CA Resolution dated 16 March 2009, the appellate court
stated that their records revealed that Atty. Espinas, petitioners’
counsel of record at the time, was duly served a copy of the
16
following: CA Resolution dated 20 February 2008 granting
respondent’s Motion for Extension of Time to file the CA Petition;
CA Resolution dated 24 April 2008 requiring petitioners to file
their Comment on the CA Petition; and CA Resolution dated 30
June 2008, submitting the case for resolution, as no comment was
filed.
Such service to Atty. Espinas, as petitioners’ counsel of record,
was valid despite the fact he was already deceased at the time. If a
party to a case has appeared by counsel, service of pleadings and
judgments shall be made upon his counsel or one of them, unless
service upon the party is specifically ordered by the court. It is not
the duty of the courts to inquire, during the progress of a case,
whether the law firm or partnership representing one of the
litigants continues to exist lawfully, whether the partners are still
alive, or whether its associates are still connected with the firm.[20]
It is the duty of party-litigants to be in contact with their counsel
from time to time in order to be informed of the progress of their
case. It is likewise the duty of parties to inform the court of the fact
of their counsel’s death.[21] Their failure to do so means that they
have been negligent in the protection of their cause. [22] They cannot
pass the blame to the court, which is not tasked to monitor the
changes in the circumstances of the parties and their counsel.
Substitution of Counsel
Petitioners claim that Atty. Espinas passed away on 8 February
2008. They further claim that he was already bedridden as early as
December 2007, and thus they “failed to get any information
whether [he] was served with a copy of the [CA Petition].”[23]
Petitioners were negligent in the conduct of their litigation. Having
known that Atty. Espinas was already bedridden as early as
December 2007, they should have already obtained new counsel
who could adequately represent their interests. The excuse that
Atty. Aglipay could not enter his appearance before the CA
“because [petitioners] failed to get [their] folder from the office of
Atty. Espinas”[24] is flimsy at best.
The requirements for a valid substitution of counsel have been
jurisprudentially settled in this wise:
Under Section 26, Rule 138 of the Rules of Court and
established jurisprudence, a valid substitution of counsel
has the following requirements: (1) the filing of a written
application for substitution; (2) the client's written
consent; (3) the consent of the substituted lawyer if such
consent can be obtained; and, in case such written consent
cannot be procured, (4) a proof of service of notice of
such motion on the attorney to be substituted in the
manner required by the Rules. Where death of the
previous attorney is the cause of substitution of the
counsel, a verified proof of the death of such attorney
(usually a death certificate) must accompany the notice of
appearance of the new counsel.[25]
 
The fact that petitioners were unable to obtain their folder from
Atty. Espinas is immaterial. Proof of service upon the lawyer to be
substituted will suffice where the lawyer’s consent cannot be
obtained. With respect to the records of the case, these may easily
be reconstituted by obtaining copies thereof from the various
courts involved.
Petitioners allegedly went to the CA sometime prior to 31 July
2008, or the date of filing of their Manifestation before the CA, to
inquire about the status of their case. Allegedly, they “always
visited the Court of Appeals for [the] development of their
case.”[26]It is doubtful that a person who regularly follows up the
status of his case before a court would not be told, first, that a
petition has been filed against him; and, second, that the court’s
resolutions have been sent to his counsel. It is questionable why,
knowing these matters, petitioners did not seek the replacement of
their counsel, if the latter was unable to pursue their case. Further,
despite their manifestation that, sometime prior to 31 July 2008,
they were already aware that the case had been submitted for
resolution, they still waited until 9 September 2008 – or until they
allegedly had knowledge of the CA Decision – before they filed
the Motion to Annul Proceedings.  
In Ampo v. Court of Appeals,[27] this Court explained the vigilance
that must be exercised by a party:
We are not persuaded by petitioner’s argument that he
was not aware that his counsel had died or that an adverse
judgment had already been rendered until he received the
notice of promulgation from the RTC of Butuan City on
April 20, 2005. Time and again we have stated that equity
aids the vigilant, not those who slumber on their rights.
Petitioner should have taken it upon himself to
periodically keep in touch with his counsel, check with
the court, and inquire about the status of the case. Had
petitioner been more prudent, he would have found out
sooner about the death of his counsel and would have
taken the necessary steps to prevent his present
predicament.
x x x                            x x x                            x xx
Litigants who are represented by counsel should not expect that all
they need to do is sit back, relax and await the outcome of their
cases. Relief will not be granted to a party who seeks avoidance
from the effects of the judgment when the loss of the remedy at
law was due to his own negligence. The circumstances of this case
plainly show that petitioner only has himself to blame. Neither can
he invoke due process. The essence of due process is simply an
opportunity to be heard. Due process is satisfied when the parties
are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy. Where a party, such as
petitioner, was afforded this opportunity to participate but failed to
do so, he cannot complain of deprivation of due process. If said
opportunity is not availed of, it is deemed waived or forfeited
without violating the constitutional guarantee.
In this case, petitioners must bear the fruits of their negligence in
the handling of their case. They may not decry the denial of due
process, when they were indeed afforded the right to be heard in
the first place.
Sec. 9. Service of judgments, final orders, or resolutions
Section 9. Service of judgments, final orders, or resolutions. —
Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also by
publication at the expense of the prevailing party. (7a)
Aberca v. Ver, G.R. No. 166216, March 14, 2012 (Supra.)
17

Sec. 10. Completeness of service

Section 10. Completeness of service. — Personal service is
complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing, unless
the court otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee, or after five (5)
days from the date he received the first notice of the postmaster,
whichever date is earlier. (8a)

Bernarte v. PBA, G.R. No. 192084, September 14, 2011

FACTS: