G.R. No.

136426 August 6, 1999

E. B. VILLAROSA & PARTNER CO., LTD., petitioner,

vs.
HON. HERMINIO I. BENITO, in his capacity as Presiding Judge, RTC, Branch 132, Makati City
and IMPERIAL DEVELOPMENT CORPORATION, respondent.

GONZAGA-REYES, J.:

Before this Court is a petition for certiorari and prohibition with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction seeking to annul and set aside the Orders dated August 5,
1998 and November 20, 1998 of the public respondent Judge Herminio I. Benito of the Regional Trial Court of
Makati City, Branch 132 and praying that the public respondent court be ordered to desist from further
proceeding with Civil Case No. 98-824.

Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal office address at 102 Juan
Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila and
Kolambog, Lapasan, Cagayan de Oro City. Petitioner and private respondent executed a Deed of Sale with
Development Agreement wherein the former agreed to develop certain parcels of land located at Barrio
Carmen, Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost
housing units. They further agreed that in case of litigation regarding any dispute arising therefrom, the venue
shall be in the proper courts of Makati.

On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages
against petitioner, as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to
comply with its contractual obligation in that, other than a few unfinished low cost houses, there were no
substantial developments therein.1

Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr.
Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro City2 but the Sheriff's Return
of Service3stated that the summons was duly served "upon defendant E.B. Villarosa & Partner Co., Ltd. thru its
Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office Villa Gonzalo, Nazareth,
Cagayan de Oro City, and evidenced by the signature on the face of the original copy of the
summons.1âwphi1.nêt

On June 9, 1998, defendant filed a Special Appearance with Motion to Dismiss4 alleging that on May 6, 1998,
"summons intended for defendant" was served upon Engr. Wendell Sabulbero, an employee of defendant at its
branch office at Cagayan de Oro City. Defendant prayed for the dismissal of the complaint on the ground of
improper service of summons and for lack of jurisdiction over the person of the defendant. Defendant contends
that the trial court did not acquire jurisdiction over its person since the summons was improperly served upon
its employee in its branch office at Cagayan de Oro City who is not one of those persons named in Section 11,
Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons may be made.

Meanwhile, on June 10, 1998, plaintiff filed a Motion to Declare Defendant in Default5 alleging that defendant
has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the summons and the complaint, as
shown in the Sheriffs Return.

On June 22, 1998, plaintiff filed an Opposition to Defendant's Motion to Dismiss6 alleging that the records show
that defendant, through its branch manager, Engr. Wendell Sabulbero actually received the summons and the
complaint on May 8, 1998 as evidenced by the signature appearing on the copy of the summons and not on
May 5, 1998 as stated in the Sheriffs Return nor on May 6, 1998 as stated in the motion to dismiss; that
defendant has transferred its office from Kolambog, Lapasan, Cagayan de Oro to its new office address at Villa
Gonzalo, Nazareth, Cagayan de Oro; and that the purpose of the rule is to bring home to the corporation notice
of the filing of the action.
On August 5, 1998, the trial court issued an Order7 denying defendant's Motion to Dismiss as well as plaintiffs
Motion to Declare Defendant in Default. Defendant was given ten (10) days within which to file a responsive
pleading. The trial court stated that since the summons and copy of the complaint were in fact received by the
corporation through its branch manager Wendell Sabulbero, there was substantial compliance with the rule on
service of summons and consequently, it validly acquired jurisdiction over the person of the defendant.

On August 19, 1998, defendant, by Special Appearance, filed a Motion for Reconsideration8 alleging that
Section 11, Rule 14 of the new Rules did not liberalize but, on the contrary, restricted the service of summons
on persons enumerated therein; and that the new provision is very specific and clear in that the word
"manager" was changed to "general manager", "secretary" to "corporate secretary", and excluding therefrom
agent and director.

On August 27, 1998, plaintiff filed an Opposition to defendant's Motion for Reconsideration9 alleging that
defendant's branch manager "did bring home" to the defendant-corporation the notice of the filing of the action
and by virtue of which a motion to dismiss was filed; and that it was one (1) month after receipt of the
summons and the complaint that defendant chose to file a motion to dismiss.

On September 4, 1998, defendant, by Special Appearance, filed a Reply10 contending that the changes in the
new rules are substantial and not just general semantics.

Defendant's Motion for Reconsideration was denied in the Order dated November 20, 1998.11

Hence, the present petition alleging that respondent court gravely abused its discretion tantamount to lack or in
excess of jurisdiction in denying petitioner's motions to dismiss and for reconsideration, despite the fact that
the trial court did not acquire jurisdiction over the person of petitioner because the summons intended for it was
improperly served. Petitioner invokes Section 11 of Rule 14 of the 1997 Rules of Civil Procedure.

Private respondent filed its Comment to the petition citing the cases Kanlaon Construction Enterprises
Co., Inc. vs.NLRC12 wherein it was held that service upon a construction project manager is valid and
in Gesulgon vs. NLRC13which held that a corporation is bound by the service of summons upon its assistant
manager.

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

When the complaint was filed by Petitioner on April 3, 1998, the 1997 Rules of Civil Procedure was already in
force.14

Sec. 11, Rule 14 of the 1997 Rules of Civil Procedure provides that:

When the defendant is a corporation, partnership or association organized under the laws of the
Philippines with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel. (emphasis supplied).

This provision revised the former Section 13, Rule 14 of the Rules of Court which provided that:

Sec. 13. Service upon private domestic corporation or partnership. — If the defendant is a corporation
organized under the laws of the Philippines or a partnership duly registered, service may be made on
the president, manager, secretary, cashier, agent, or any of its directors. (emphasis supplied).

Petitioner contends that the enumeration of persons to whom summons may be served is "restricted, limited
and exclusive" following the rule on statutory construction expressio unios est exclusio alterius and argues that
if the Rules of Court Revision Committee intended to liberalize the rule on service of summons, it could have
easily done so by clear and concise language.
We agree with petitioner.

Earlier cases have uphold service of summons upon a construction project manager15; a corporation's
assistant manager16; ordinary clerk of a corporation17; private secretary of corporate executives18; retained
counsel19; officials who had charge or control of the operations of the corporation, like the assistant general
manager20; or the corporation's Chief Finance and Administrative Officer21. In these cases, these persons were
considered as "agent" within the contemplation of the old rule.22 Notably, under the new Rules, service of
summons upon an agent of the corporation is no longer authorized.

The cases cited by private respondent are therefore not in point.

In the Kanlaon case, this Court ruled that under the NLRC Rules of Procedure, summons on the respondent
shall be served personally or by registered mail on the party himself; if the party is represented by counsel or
any other authorized representative or agent, summons shall be served on such person. In said case,
summons was served on one Engr. Estacio who managed and supervised the construction project in Iligan
City (although the principal address of the corporation is in Quezon City) and supervised the work of the
employees. It was held that as manager, he had sufficient responsibility and discretion to realize the
importance of the legal papers served on him and to relay the same to the president or other responsible
officer of petitioner such that summons for petitioner was validly served on him as agent and authorized
representative of petitioner. Also in the Gesulgon case cited by private respondent, the summons was received
by the clerk in the office of the Assistant Manager (at principal office address) and under Section 13 of Rule 14
(old rule), summons may be made upon the clerk who is regarded as agent within the contemplation of the
rule.

The designation of persons or officers who are authorized to accept summons for a domestic corporation or
partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure. The rule now states "general manager" instead of only "manager"; "corporate secretary" instead of
"secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously
deleted in the new rule.

The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice Florenz
Regalado, thus:23

. . . the then Sec. 13 of this Rule allowed service upon a defendant corporation to "be made on the
president, manager, secretary, cashier, agent or any of its directors." The aforesaid terms were
obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the
word "agent" of the corporation. The Filoil case, involving the litigation lawyer of the corporation who
precisely appeared to challenge the validity of service of summons but whose very appearance for that
purpose was seized upon to validate the defective service, is an illustration of the need for this revised
section with limited scope and specific terminology. Thus the absurd result in the Filoil case
necessitated the amendment permitting service only on the in-house counsel of the corporation who is
in effect an employee of the corporation, as distinguished from an independent practitioner. (emphasis
supplied).

Retired Justice Oscar Herrera, who is also a consultant of the Rules of Court Revision Committee, stated that
"(T)he rule must be strictly observed. Service must be made to one named in (the) statute . . . . 24

It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with
the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing,25 the Court held:

A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made must be one who is named in the statute;
otherwise the service is insufficient. . . .
 The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice
in an action against it or to insure that the summons be served on a representative so integrated with
the corporation that such person will know what to do with the legal papers served on him. In other
words, "to bring home to the corporation notice of the filing of the action." . . . .

The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal
requirements as to the manner in which summons should be served on a domestic corporation. . . . .
(emphasis supplied).

Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been
held as improper.26 Even under the old rule, service upon a general manager of a firm's branch office has been
held as improper as summons should have been served at the firm's principal office. In First Integrated
Bonding & Inc. Co., Inc. vs. Dizon,27 it was held that the service of summons on the general manager of the
insurance firm's Cebu branch was improper; default order could have been obviated had the summons been
served at the firm's principal office.

And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et al.28 the Court succinctly
clarified that, for the guidance of the Bench and Bar, "strictest" compliance with Section 11 of Rule 13 of the
1997 Rules of Civil Procedure (on Priorities in modes of service and filing) is mandated and the Court cannot
rule otherwise, lest we allow circumvention of the innovation by the 1997 Rules in order to obviate delay in the
administration of justice.

Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office at
Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper.
Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.

The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person.
There is no question that the defendant's voluntary appearance in the action is equivalent to service of
summons.29Before, the rule was that a party may challenge the jurisdiction of the court over his person by
making a special appearance through a motion to dismiss and if in the same motion, the movant raised other
grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the
court.30 This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et
al.,31 which became the basis of the adoption of a new provision in the former Section 23, which is now Section
20 of Rule 14 of the 1997 Rules. Section 20 now provides that "the inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance." The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of
the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the
defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person
of the defendant can by no means be deemed a submission to the jurisdiction of the court. There being no
proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the
person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.32

WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court are
ANNULLED and SET ASIDE. The public respondent Regional Trial Court of Makati, Branch 132 is declared
without jurisdiction to take cognizance of Civil Case No. 98-824, and all its orders and issuances in connection
therewith are hereby ANNULLED and SET ASIDE.1âwphi1.nêt

SO ORDERED.

Melo, Vitug, Panganiban and Purisima, JJ., concur.

G.R. No. 147369 October 23, 2003

Spouses PATRICK JOSE and RAFAELA JOSE, petitioners,
vs.
Spouses HELEN BOYON and ROMEO BOYON, respondents.

DECISION

PANGANIBAN, J.:

In general, substituted service can be availed of only after a clear showing that personal service of summons
was not legally possible. Also, service by publication is applicable in actions in rem and quasi in rem, but not in
personal suits such as the present one which is for specific performance.

The Case

Before the Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, assailing the
February 26, 2001 Decision2 of the Court of Appeals (CA) in CA-GR SP No. 60888. The dispositive portion of
the CA Decision is worded as follows:

"WHEREFORE, on the basis of what prescinds, the assailed resolution and orders issued by the public
respondent are perforce ANNULLED and SET ASIDE. This pronouncement is nonetheless rendered without
prejudice to the refiling of the same case by the private respondents with the court a quo."3

The Facts

The factual antecedents of the case are narrated by the CA in this wise:

"On July 2, 1998, [petitioners] Patrick and Rafaela Jose lodged a complaint for specific performance against
[respondents] Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of a parcel of
land subject of a controverted sale. The action was lodged before the Regional Trial Court of Muntinlupa which
is presided by herein public respondent Judge N.C. Perello. On July 21, 1998, respondent judge, through the
acting Branch Clerk of Court of Branch 276 of the RTC of Muntinlupa City, issued summons to the
[respondents]. As per return of the summons, substituted service was resorted to by the process server
allegedly because efforts to serve the summons personally to the [respondents] failed. On December 9, 1998,
[petitioners] filed before the trial court an Ex-parte Motion for Leave of Court to Effect Summons by Publication.
On December 28, 1998, public respondent issued an Order granting the Ex-parte Motion for Leave of Court to
Effect Summons by Publication. On July 30, 1999, the respondent judge, sans a written motion, issued an
Order declaring herein [respondents] in default for failure to file their respective answers. As a consequence of
the declaration of default, [petitioners] were allowed to submit their evidence ex-parte. Ultimately, on December
7, 1999, respondent judge issued the assailed resolution, the dispositive portion of which reads as follows:

‘x x x Therefore, Spouses Helen and Romeo Boyon are directed to execute the necessary document with the
effect of withdrawing the Affidavit of Loss they filed and annotated with the Register of Deeds of Makati City so
that title ‘to the parcel of land subject of the Deed of Absolute Sale in favor of the Plaintiffs be transferred in
their names. Thereafter the Register of Deeds of Makati City or Muntinlupa City may cancel Transfer of
Certificate of Title No. 149635 of the Defendants and issue another to Plaintiff under the deed of sale, clean
and free of any reported encumbrance.

‘Defendants are also directed to pay Plaintiffs actual expenses in the amount of ₱20,000 and attorney’s fees of
₱20,000 including costs of this suit.’

xxxxxxxxx

"On January 5, 2000, [respondent] Helen Boyon, who was then residing in the United States of America, was
surprised to learn from her sister Elizabeth Boyon, of the resolution issued by the respondent court. On
January 18, 2000, [respondents] filed an Ad Cautelam motion questioning, among others, the validity of the
service of summons effected by the court a quo. On March 17, 2000, the public respondent issued an Order
denying the said motion on the basis of the defaulted [respondents’] supposed loss of standing in court. On
March 29, 2000, the [respondents] once again raised the issue of jurisdiction of the trial court via a motion for
reconsideration. On June 22, 2000, however, an Order was issued by the public respondent denying the said
motion. The [petitioners] moved for the execution of the controverted judgment which the respondent judge
ultimately granted."4

Thereafter, respondents filed before the CA a Petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure, questioning the jurisdiction of the regional trial court (RTC).

Ruling of the Court of Appeals

The CA held that the trial court had no authority to issue the questioned Resolution and Orders. According to
the appellate court, the RTC never acquired jurisdiction over respondents because of the invalid service of
summons upon them. First, the sheriff failed to comply with the requirements of substituted service of
summons, because he did not specify in the Return of Summons the prior efforts he had made to locate them
and the impossibility of promptly serving the summons upon them by personal service. Second, the
subsequent summons by publication was equally infirm, because the Complaint was a suit for specific
performance and therefore an action in personam. Consequently, the Resolution and the Orders were null and
void, since the RTC had never acquired jurisdiction over respondents.

Hence, this Petition.5

Issues

In their Memorandum, petitioners raise the following issues for our consideration:

"A. The Honorable Court of Appeals erred in not holding that the assailed Resolution dated December
7, 1999 was already final and executory

"B. The Honorable Court of Appeals erred in giving due course to the Petition for Certiorari of private
respondents despite the pendency of an appeal earlier filed

"C. The Honorable Court erred in not holding that the Petition for Certiorari was time barred

"D. The Honorable Court of Appeals erred in holding that the proceedings in the lower court are null
and void due to invalid and defective service of summons and the court did not acquire jurisdiction over
the person of the respondents."6

In sum, the main issue revolves around the validity of the service of summons on respondents.1ªvvphi1.nét

The Court’s Ruling

The Petition has no merit.

Main Issue:

Validity of the Service of Summons

Petitioners aver that the CA erred in ruling that the service of summons on respondents was invalid. They
submit that although the case filed before the trial court was denominated as an action for specific
performance, it was actually an action quasi in rem, because it involved a piece of real property located in the
Philippines. They further argue that in actions quasi in rem involving ownership of a parcel of land, it is
sufficient that the trial court acquire jurisdiction over the res. Thus, the summons by publication, which they
effected subsequent to the substituted service of summons, was allegedly sufficient.
On the other hand, respondents maintain that the proceedings in the trial court were null and void because of
the invalid and defective service of summons. According to them, the Return of Summons issued by the
process server of the RTC failed to state that he had exerted earnest efforts to effect the service of summons.
He allegedly tried to serve it personally on them on July 22, 1998 at No. 32 Ariza Drive, Camella Homes,
Alabang. He, however, resorted to substituted service on that same day, supposedly because he could not find
respondents in the above address. They further allege that the person to whom he gave the summons was not
even a resident of that address.

Respondents contend that when summons is served by substituted service, the return must show that it was
impossible to serve the summons personally, and that efforts had been exerted toward that end. They add that
noncompliance with the rule on substituted service renders invalid all proceedings relative thereto.

As to the summons by publication subsequently effected by petitioners, respondents argue that the case filed
before the trial court was an action for specific performance and, therefore, an action in personam. As such,
the summons by publication was insufficient to enable the trial court to acquire jurisdiction over the persons of
respondents.

Respondents conclude that even granting that the service of summons by publication was permissible under
the circumstances, it would still be defective and invalid because of the failure of petitioners to observe the
requirements of law, like an Affidavit attesting that the latter deposited in the post office a copy of the summons
and of the order of publication, paid the postage, and sent the documents by registered mail to the former’s last
known address.1awphi1.nét

We agree with respondents. In general, trial courts acquire jurisdiction over the person of the defendant by the
service of summons. Where the action is in personam and the defendant is in the Philippines, such service
may be done by personal or substituted service, following the procedures laid out in Sections 6 and 7 of Rule
14 of the Revised Rules of Court, which read:

"Section 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing
a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

"Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable
time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant’s office or regular place of business with some competent person in charge thereof."

As can be gleaned from the above-quoted Sections, personal service of summons is preferred to substituted
service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the
proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable
time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a
person of sufficient age and discretion who is residing in the address, or who is in charge of the office or
regular place of business, of the defendant.7 It is likewise required that the pertinent facts proving these
circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly
and fully with all the foregoing requirements of substituted service renders the service of summons ineffective. 8

Defective Personal Service of Summons

In the instant case, it appears that the process server hastily and capriciously resorted to substituted service of
summons without actually exerting any genuine effort to locate respondents. A review of the records9 reveals
that the only effort he exerted was to go to No. 32 Ariza Drive, Camella Homes, Alabang on July 22, 1998, to
try to serve the summons personally on respondents. While the Return of Summons states that efforts to do so
were ineffectual and unavailing because Helen Boyon was in the United States and Romeo Boyon was in
Bicol, it did not mention exactly what efforts -- if any -- were undertaken to find respondents. Furthermore, it did
not specify where or from whom the process server obtained the information on their whereabouts. The
pertinent portion of the Return of Summons is reproduced as follows:
"That efforts to serve the said Summons personally upon defendants Sps. Helen and Romeo Boyon were
made but the same were ineffectual and unavailing for the reason that defendant Helen Boyon is somewhere
in the United States of America and defendant Romeo Boyon is in Bicol thus substituted service was made in
accordance with Section 7, Rule 14, of the Revised Rules of Court."10

The Return of Summons shows that no effort was actually exerted and no positive step taken by either the
process server or petitioners to locate and serve the summons personally on respondents. At best, the Return
merely states the alleged whereabouts of respondents without indicating that such information was verified
from a person who had knowledge thereof. Certainly, without specifying the details of the attendant
circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were
made will not suffice for purposes of complying with the rules of substituted service of summons.

The necessity of stating in the process server’s Return or Proof of Service the material facts and
circumstances sustaining the validity of substituted service was explained by this Court in Hamilton v.
Levy,11 from which we quote:

"x x x The pertinent facts and circumstances attendant to the service of summons must be stated in the proof
of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be
upheld. This is necessary because substituted service is in derogation of the usual method of service. It is a
method extraordinary in character and hence may be used only as prescribed and in the circumstances
authorized by statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with
the requirements of substituted service renders said service ineffective."12

Moreover, the requirements of substituted service of summons and the effect of noncompliance with the
subsequent proceedings therefor were discussed in Madrigal v. Court of Appeals13 as follows:

"In a long line of cases, this Court held that the impossibility of personal service justifying availment of
substituted service should be explained in the proof of service; why efforts exerted towards personal service
failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof
of service or Officer’s Return; otherwise, the substituted service cannot be upheld. It bears stressing that since
service of summons, especially for actions in personam, is essential for the acquisition of jurisdiction over the
person of the defendant, the resort to a substituted service must be duly justified. Failure to do so would
invalidate all subsequent proceedings on jurisdictional grounds."14

Summons by Publication Improper

It must be noted that extraterritorial service of summons or summons by publication applies only when the
action is in rem or quasi in rem. The first is an action against the thing itself instead of against the defendant’s
person; in the latter, an individual is named as defendant, and the purpose is to subject that individual’s interest
in a piece of property to the obligation or loan burdening it.15

In the instant case, what was filed before the trial court was an action for specific performance directed against
respondents. While the suit incidentally involved a piece of land, the ownership or possession thereof was not
put in issue, since they did not assert any interest or right over it. Moreover, this Court has consistently
declared that an action for specific performance is an action in personam.16

Having failed to serve the summons on respondents properly, the RTC did not validly acquire jurisdiction over
their persons. Consequently, due process demands that all the proceedings conducted subsequent thereto
should be deemed null and void.17

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against
petitioners.

SO ORDERED.
Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

G.R. No. 130974 August 16, 2006

MA. IMELDA M. MANOTOC, Petitioner,

vs.
HONORABLE COURT OF APPEALS and AGAPITA TRAJANO on behalf of the Estate of ARCHIMEDES
TRAJANO, Respondents.

DECISION

VELASCO, JR., J.:

The court’s jurisdiction over a defendant is founded on a valid service of summons. Without a valid service, the
court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits to it. The
defendant must be properly apprised of a pending action against him and assured of the opportunity to present
his defenses to the suit. Proper service of summons is used to protect one’s right to due process.

The Case

This Petition for Review on Certiorari 1 under Rule 45 presents the core issue whether there was a valid
substituted service of summons on petitioner for the trial court to acquire jurisdiction. Petitioner Manotoc claims
the court a quo should have annulled the proceedings in the trial court for want of jurisdiction due to irregular
and ineffective service of summons.

The Facts

Petitioner is the defendant in Civil Case No. 63337 entitled Agapita Trajano, pro se, and on behalf of the Estate
of Archimedes Trajano v. Imelda ‘Imee’ R. Marcos-Manotoc 2 for Filing, Recognition and/or Enforcement of
Foreign Judgment. Respondent Trajano seeks the enforcement of a foreign court’s judgment rendered on May
1, 1991 by the United States District Court of Honolulu, Hawaii, United States of America, in a case entitled
Agapita Trajano, et al. v. Imee Marcos-Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death
of deceased Archimedes Trajano committed by military intelligence officials of the Philippines allegedly under
the command, direction, authority, supervision, tolerance, sufferance and/or influence of defendant Manotoc,
pursuant to the provisions of Rule 39 of the then Revised Rules of Court.

Based on paragraph two of the Complaint, the trial court issued a Summons 3 on July 6, 1993 addressed to
petitioner at Alexandra Condominium Corporation or Alexandra Homes, E2 Room 104, at No. 29 Meralco
Avenue, Pasig City.

On July 15, 1993, the Summons and a copy of the Complaint were allegedly served upon (Mr.) Macky de la
Cruz, an alleged caretaker of petitioner at the condominium unit mentioned earlier. 4 When petitioner failed to
file her Answer, the trial court declared her in default through an Order 5 dated October 13, 1993.

On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion to Dismiss 6 on the ground of
lack of jurisdiction of the trial court over her person due to an invalid substituted service of summons. The
grounds to support the motion were: (1) the address of defendant indicated in the Complaint (Alexandra
Homes) was not her dwelling, residence, or regular place of business as provided in Section 8, Rule 14 of the
Rules of Court; (2) the party (de la Cruz), who was found in the unit, was neither a representative, employee,
nor a resident of the place; (3) the procedure prescribed by the Rules on personal and substituted service of
summons was ignored; (4) defendant was a resident of Singapore; and (5) whatever judgment rendered in this
case would be ineffective and futile.

During the hearing on the Motion to Dismiss, petitioner Manotoc presented Carlos Gonzales, who testified that
he saw defendant Manotoc as a visitor in Alexandra Homes only two times. He also identified the Certification
of Renato A. de Leon, which stated that Unit E-2104 was owned by Queens Park Realty, Inc.; and at the time
the Certification was issued, the unit was not being leased by anyone. Petitioner also presented her Philippine
passport and the Disembarkation/Embarkation Card 7 issued by the Immigration Service of Singapore to show
that she was a resident of Singapore. She claimed that the person referred to in plaintiff’s Exhibits "A" to
"EEEE" as "Mrs. Manotoc" may not even be her, but the mother of Tommy Manotoc, and granting that she was
the one referred to in said exhibits, only 27 out of 109 entries referred to Mrs. Manotoc. Hence, the infrequent
number of times she allegedly entered Alexandra Homes did not at all establish plaintiff’s position that she was
a resident of said place.

On the other hand, Agapita Trajano, for plaintiffs’ estate, presented Robert Swift, lead counsel for plaintiffs in
the Estate of Ferdinand Marcos Human Rights Litigation, who testified that he participated in the deposition
taking of Ferdinand R. Marcos, Jr.; and he confirmed that Mr. Marcos, Jr. testified that petitioner’s residence
was at the Alexandra Apartment, Greenhills. 8 In addition, the entries 9 in the logbook of Alexandra Homes from
August 4, 1992 to August 2, 1993, listing the name of petitioner Manotoc and the Sheriff’s Return, 10 were
adduced in evidence.

On October 11, 1994, the trial court rejected Manotoc’s Motion to Dismiss on the strength of its findings that
her residence, for purposes of the Complaint, was Alexandra Homes, Unit E-2104, No. 29 Meralco Avenue,
Pasig, Metro Manila, based on the documentary evidence of respondent Trajano. The trial court relied on the
presumption that the sheriff’s substituted service was made in the regular performance of official duty, and
such presumption stood in the absence of proof to the contrary. 11

On December 21, 1994, the trial court discarded Manotoc’s plea for reconsideration for lack of merit. 12

Undaunted, Manotoc filed a Petition for Certiorari and Prohibition 13 before the Court of Appeals (CA) on
January 20, 1995, docketed as CA-G.R. SP No. 36214 seeking the annulment of the October 11, 1994 and
December 21, 1994 Orders of Judge Aurelio C. Trampe.

Ruling of the Court of Appeals

On March 17, 1997, the CA rendered the assailed Decision, 14 dismissing the Petition for Certiorari and
Prohibition. The court a quo adopted the findings of the trial court that petitioner’s residence was at Alexandra
Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig, Metro Manila, which was also the residence of her
husband, as shown by the testimony of Atty. Robert Swift and the Returns of the registered mails sent to
petitioner. It ruled that the Disembarkation/Embarkation Card and the Certification dated September 17, 1993
issued by Renato A. De Leon, Assistant Property Administrator of Alexandra Homes, were hearsay, and that
said Certification did not refer to July 1993—the month when the substituted service was effected.

In the same Decision, the CA also rejected petitioner’s Philippine passport as proof of her residency in
Singapore as it merely showed the dates of her departure from and arrival in the Philippines without presenting
the boilerplate’s last two (2) inside pages where petitioner’s residence was indicated. The CA considered the
withholding of those pages as suppression of evidence. Thus, according to the CA, the trial court had acquired
jurisdiction over petitioner as there was a valid substituted service pursuant to Section 8, Rule 14 of the old
Revised Rules of Court.

15
On April 2, 1997, petitioner filed a Motion for Reconsideration which was denied by the CA in its
Resolution 16dated October 8, 1997.

Hence, petitioner has come before the Court for review on certiorari.

The Issues

Petitioner raises the following assignment of errors for the Court’s consideration:
I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN RENDERING THE
DECISION AND RESOLUTION IN QUESTION (ANNEXES A AND B) IN DEFIANCE OF LAW AND
JURISPRUDENCE IN RULING THAT THE TRIAL COURT ACQUIRED JURISDICTION OVER THE PERSON
OF THE PETITIONER THROUGH A SUBSTITUTED SERVICE OF SUMMONS IN ACCORDANCE WITH
SECTION 8, RULE 14 OF THE REVISED RULES OF COURT.

II. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR WHEN IT RULED THAT
THERE WAS A VALID SERVICE OF SUMMONS ON AN ALLEGED CARETAKER OF PETITIONER’S
RESIDENCE IN COMPLETE DEFIANCE OF THE RULING IN CASTILLO VS. CFI OF BULACAN, BR. IV,
G.R. NO. L-55869, FEBRUARY 20, 1984, 127 SCRA 632 WHICH DEFINES THE PROPRIETY OF SUCH
SERVICE UPON MERE OVERSEERS OF PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.

III. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN CONCLUDING THAT THE
RESIDENCE OF THE HUSBAND IS ALSO THE RESIDENCE OF HIS WIFE CONTRARY TO THE RULING
IN THE BANK OF THE PHILIPPINE ISLANDS VS. DE COSTER, G.R. NO. 23181, MARCH 16, 1925, 47
PHIL. 594.

IV. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN FAILING TO APPLY THE
RULE ON EXTRA-TERRITORIAL SERVICE OF SUMMONS UNDER SECTIONS 17 AND 18, RULE 14 OF
THE REVISED RULES OF COURT. 17

The assigned errors bring to the fore the crux of the disagreement—the validity of the substituted service of
summons for the trial court to acquire jurisdiction over petitioner.

The Court’s Ruling

We GRANT the petition.

Acquisition of Jurisdiction

Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary
appearance in court. When the defendant does not voluntarily submit to the court’s jurisdiction or when there is
no valid service of summons, "any judgment of the court which has no jurisdiction over the person of the
defendant is null and void." 18 In an action strictly in personam, personal service on the defendant is the
preferred mode of service, that is, by handing a copy of the summons to the defendant in person. If defendant,
for excusable reasons, cannot be served with the summons within a reasonable period, then substituted
service can be resorted to. While substituted service of summons is permitted, "it is extraordinary in character
and in derogation of the usual method of service." 19 Hence, it must faithfully and strictly comply with the
prescribed requirements and circumstances authorized by the rules. Indeed, "compliance with the rules
regarding the service of summons is as much important as the issue of due process as of jurisdiction." 20

Requirements for Substituted Service

Section 8 of Rule 14 of the old Revised Rules of Court which applies to this case provides:

SEC. 8. 21 Substituted service. – If the defendant cannot be served within a reasonable time as provided in the
preceding section [personal service on defendant], service may be effected (a) by leaving copies of the
summons at the defendant’s residence with some person of suitable age and discretion then residing therein,
or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in
charge thereof.

We can break down this section into the following requirements to effect a valid substituted service:

(1) Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or
there is impossibility of prompt service. 22 Section 8, Rule 14 provides that the plaintiff or the sheriff is given a
"reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned.
"Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably
prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a
regard for the rights and possibility of loss, if any[,] to the other party." 23 Under the Rules, the service of
summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make
the return of the summons and the latter submits the return of summons, then the validity of the summons
lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. 24 What then is a
reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt
service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious
processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days
because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a
return of the summons assigned to the sheriff for service. The Sheriff’s Return provides data to the Clerk of
Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court
Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of
summons can be considered "reasonable time" with regard to personal service on the defendant.

Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and
reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they
are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the
defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons
to be available, there must be several attempts by the sheriff to personally serve the summons within a
reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service.
"Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the
sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be
confirmed or accepted.

(2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted
personal service. 25 The efforts made to find the defendant and the reasons behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to
locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other
acts done, though futile, to serve the summons on defendant must be specified in the Return to justify
substituted service. The form on Sheriff’s Return of Summons on Substituted Service prescribed in the
Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to
find the defendant personally and the fact of failure. 26 Supreme Court Administrative Circular No. 5 dated
November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to
find the defendant personally and the failure of such efforts," which should be made in the proof of service.

(3) A Person of Suitable Age and Discretion

If the substituted service will be effected at defendant’s house or residence, it should be left with a person of
"suitable age and discretion then residing therein." 27 A person of suitable age and discretion is one who has
attained the age of full legal capacity (18 years old) and is considered to have enough discernment to
understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which
represent a responsible choice and for which an understanding of what is lawful, right or wise may be
presupposed". 28 Thus, to be of sufficient discretion, such person must know how to read and understand
English to comprehend the import of the summons, and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the
person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at
least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant
is, and whether said person comprehends the significance of the receipt of the summons and his duty to
immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These
matters must be clearly and specifically described in the Return of Summons.

(4) A Competent Person in Charge

If the substituted service will be done at defendant’s office or regular place of business, then it should be
served on a competent person in charge of the place. Thus, the person on whom the substituted service will be
made must be the one managing the office or business of defendant, such as the president or manager; and
such individual must have sufficient knowledge to understand the obligation of the defendant in the summons,
its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be
contained in the Return.

Invalid Substituted Service in the Case at Bar

Let us examine the full text of the Sheriff’s Return, which reads:

THIS IS TO CERTIFY that on many occasions several attempts were made to serve the summons with
complaint and annexes issued by this Honorable Court in the above entitled case, personally upon the
defendant IMELDA ‘IMEE’ MARCOS-MANOTOC located at Alexandra Condominium Corpration [sic] or
Alexandra Homes E-2 Room 104 No. 29 Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the
day but to no avail for the reason that said defendant is usually out of her place and/or residence or premises.
That on the 15th day of July, 1993, substituted service of summons was resorted to in accordance with the
Rules of Court in the Philippines leaving copy of said summons with complaint and annexes thru [sic] (Mr)
Macky de la Cruz, caretaker of the said defendant, according to (Ms) Lyn Jacinto, Receptionist and Telephone
Operator of the said building, a person of suitable age and discretion, living with the said defendant at the
given address who acknowledged the receipt thereof of said processes but he refused to sign (emphases
supplied).

WHEREFORE, said summons is hereby returned to this Honorable Court of origin, duly served for its record
and information.

Pasig, Metro-Manila July 15, 1993. 29

A meticulous scrutiny of the aforementioned Return readily reveals the absence of material data on the serious
efforts to serve the Summons on petitioner Manotoc in person. There is no clear valid reason cited in the
Return why those efforts proved inadequate, to reach the conclusion that personal service has become
impossible or unattainable outside the generally couched phrases of "on many occasions several attempts
were made to serve the summons x x x personally," "at reasonable hours during the day," and "to no avail for
the reason that the said defendant is usually out of her place and/or residence or premises." Wanting in
detailed information, the Return deviates from the ruling—in Domagas v. Jensen 30 and other related
cases 31—that the pertinent facts and circumstances on the efforts exerted to serve the summons personally
must be narrated in the Return. It cannot be determined how many times, on what specific dates, and at what
hours of the day the attempts were made. Given the fact that the substituted service of summons may be
assailed, as in the present case, by a Motion to Dismiss, it is imperative that the pertinent facts and
circumstances surrounding the service of summons be described with more particularity in the Return or
Certificate of Service.

Besides, apart from the allegation of petitioner’s address in the Complaint, it has not been shown that
respondent Trajano or Sheriff Cañelas, who served such summons, exerted extraordinary efforts to locate
petitioner. Certainly, the second paragraph of the Complaint only states that respondents were "informed, and
so [they] allege" about the address and whereabouts of petitioner. Before resorting to substituted service, a
plaintiff must demonstrate an effort in good faith to locate the defendant through more direct means. 32 More
so, in the case in hand, when the alleged petitioner’s residence or house is doubtful or has not been clearly
ascertained, it would have been better for personal service to have been pursued persistently.
In the case Umandap v. Sabio, Jr., 33 it may be true that the Court held that a Sheriff’s Return, which states
that "despite efforts exerted to serve said process personally upon the defendant on several occasions the
same proved futile," conforms to the requirements of valid substituted service. However, in view of the
numerous claims of irregularities in substituted service which have spawned the filing of a great number of
unnecessary special civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and
wasteful legal expenses, the Court rules in the case at bar that the narration of the efforts made to find the
defendant and the fact of failure written in broad and imprecise words will not suffice. The facts and
circumstances should be stated with more particularity and detail on the number of attempts made at personal
service, dates and times of the attempts, inquiries to locate defendant, names of occupants of the alleged
residence, and the reasons for failure should be included in the Return to satisfactorily show the efforts
undertaken. That such efforts were made to personally serve summons on defendant, and those resulted in
failure, would prove impossibility of prompt personal service.

Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine
performance of their precise duties relating to substituted service—for it would be quite easy to shroud or
conceal carelessness or laxity in such broad terms. Lastly, considering that monies and properties worth
millions may be lost by a defendant because of an irregular or void substituted service, it is but only fair that the
Sheriff’s Return should clearly and convincingly show the impracticability or hopelessness of personal service.

Granting that such a general description be considered adequate, there is still a serious nonconformity from
the requirement that the summons must be left with a "person of suitable age and discretion" residing in
defendant’s house or residence. Thus, there are two (2) requirements under the Rules: (1) recipient must be a
person of suitable age and discretion; and (2) recipient must reside in the house or residence of defendant.
Both requirements were not met. In this case, the Sheriff’s Return lacks information as to residence, age, and
discretion of Mr. Macky de la Cruz, aside from the sheriff’s general assertion that de la Cruz is the "resident
caretaker" of petitioner as pointed out by a certain Ms. Lyn Jacinto, alleged receptionist and telephone operator
of Alexandra Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc in the condominium unit
considering that a married woman of her stature in society would unlikely hire a male caretaker to reside in her
dwelling. With the petitioner’s allegation that Macky de la Cruz is not her employee, servant, or representative,
it is necessary to have additional information in the Return of Summons. Besides, Mr. Macky de la Cruz’s
refusal to sign the Receipt for the summons is a strong indication that he did not have the necessary "relation
of confidence" with petitioner. To protect petitioner’s right to due process by being accorded proper notice of a
case against her, the substituted service of summons must be shown to clearly comply with the rules.

It has been stated and restated that substituted service of summons must faithfully and strictly comply with the
prescribed requirements and in the circumstances authorized by the rules. 34

Even American case law likewise stresses the principle of strict compliance with statute or rule on substituted
service, thus:

The procedure prescribed by a statute or rule for substituted or constructive service must be strictly
pursued. 35There must be strict compliance with the requirements of statutes authorizing substituted or
constructive service. 36

Where, by the local law, substituted or constructive service is in certain situations authorized in the place of
personal service when the latter is inconvenient or impossible, a strict and literal compliance with the
provisions of the law must be shown in order to support the judgment based on such substituted or
constructive service. 37 Jurisdiction is not to be assumed and exercised on the general ground that the subject
matter of the suit is within the power of the court. The inquiry must be as to whether the requisites of the
statute have been complied with, and such compliance must appear on the record. 38 The fact that the
defendant had actual knowledge of attempted service does not render the service effectual if in fact the
process was not served in accordance with the requirements of the statute.39

Based on the above principles, respondent Trajano failed to demonstrate that there was strict compliance with
the requirements of the then Section 8, Rule 14 (now Section 7, Rule 14 of the 1997 Rules of Civil Procedure).
Due to non-compliance with the prerequisites for valid substituted service, the proceedings held before the trial
court perforce must be annulled.

The court a quo heavily relied on the presumption of regularity in the performance of official duty. It reasons out
that "[t]he certificate of service by the proper officer is prima facie evidence of the facts set out herein, and to
overcome the presumption arising from said certificate, the evidence must be clear and convincing." 40

The Court acknowledges that this ruling is still a valid doctrine. However, for the presumption to apply, the
Sheriff’s Return must show that serious efforts or attempts were exerted to personally serve the summons and
that said efforts failed. These facts must be specifically narrated in the Return. To reiterate, it must clearly
show that the substituted service must be made on a person of suitable age and discretion living in the
dwelling or residence of defendant. Otherwise, the Return is flawed and the presumption cannot be availed of.
As previously explained, the Return of Sheriff Cañelas did not comply with the stringent requirements of Rule
14, Section 8 on substituted service.

In the case of Venturanza v. Court of Appeals, 41 it was held that "x x x the presumption of regularity in the
performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff’s
return is defective (emphasis supplied)." While the Sheriff’s Return in the Venturanza case had no statement
on the effort or attempt to personally serve the summons, the Return of Sheriff Cañelas in the case at bar
merely described the efforts or attempts in general terms lacking in details as required by the ruling in the case
of Domagas v. Jensen and other cases. It is as if Cañelas’ Return did not mention any effort to accomplish
personal service. Thus, the substituted service is void.

On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104, at No. 29 Meralco
Avenue, Pasig City, our findings that the substituted service is void has rendered the matter moot and
academic. Even assuming that Alexandra Homes Room 104 is her actual residence, such fact would not make
an irregular and void substituted service valid and effective.

IN VIEW OF THE FOREGOING, this Petition for Review is hereby GRANTED and the assailed March 17,
1997 Decision and October 8, 1997 Resolution of the Court of Appeals and the October 11, 1994 and
December 21, 1994 Orders of the Regional Trial Court, National Capital Judicial Region, Pasig City, Branch
163 are hereby REVERSEDand SET ASIDE.No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

G.R. No. 168723 July 9, 2008

DOLE PHILIPPINES, INC. (TROPIFRESH DIVISION), Petitioner,

vs.
HON. REINATO G. QUILALA in his capacity as pairing judge of Branch 150, RTC-Makati City, and ALL
SEASON FARM, CORP., Respondents.

DECISION

QUISUMBING, J.:

This petition for review assails the Decision1 dated May 20, 2005 of the Court of Appeals in CA-G.R. SP No.
87723 and its Resolution2 dated June 28, 2005, denying the motion for reconsideration. The appellate court
had affirmed the Order3 dated February 6, 2004 of the Regional Trial Court (RTC) of Makati City, Branch 150,
in Civil Case No. 03-093 and its Order4 dated September 16, 2004 denying the motion for partial
reconsideration.
The factual antecedents of this case are as follows.

In a complaint filed with the RTC of Makati City, presided over by Pairing Judge Reinato Quilala, private
respondent All Season Farm Corporation ("All Season") sought the recovery of a sum of money, accounting
and damages from petitioner Dole Philippines, Inc. (Tropifresh Division) ("Dole") and several of its officers.
According to Dole, an alias summons was served upon it through a certain Marifa Dela Cruz, a legal assistant
employed by Dole Pacific General Services, Ltd., which is an entity separate from Dole.

On May 20, 2003, Dole filed a motion to dismiss the complaint on the following grounds: (a) the RTC lacked
jurisdiction over the person of Dole due to improper service of summons; (b) the complaint failed to state a
cause of action; (c) All Season was not the real party in interest; and (d) the officers of Dole cannot be sued in
their personal capacities for alleged acts performed in their official capacities as corporate officers of Dole. 5 In
its Order dated February 6, 2004, the RTC denied said motion. Dole moved for partial reconsideration raising
the same issues but its motion was denied.

Thereafter, Dole filed a petition for certiorari with the Court of Appeals contending that the alias summons was
not properly served. The appellate court, however, ruled otherwise. It reasoned that Dole’s president had
known of the service of the alias summons although he did not personally receive and sign it. It also held that
in today’s corporate setup, documents addressed to corporate officers are received in their behalf by their
staff.6 Dole sought reconsideration, but its motion was likewise denied.

Hence, this petition where petitioner raises the lone issue:

WHETHER OR NOT THE COURT OF APPEALS COMMITTED AN ERROR OF LAW WHEN IT ALLOWED
SUBSTITUTED SERVICE ON A PRIVATE CORPORATION WHEN IT HELD THAT DOLE WAS VALIDLY
SERVED WITH SUMMONS IN SPITE OF THE FACT THAT SUMMONS WAS NOT SERVED ON ITS
PRESIDENT, MANAGING PARTNER, GENERAL MANAGER, CORPORATE SECRETARY, TREASURER
OR IN-HOUSE COUNSEL THEREBY IGNORING THE RULE ON SERVICE OF SUMMONS ON PRIVATE
DOMESTIC CORPORATIONS.7

Simply stated, the issue in this case is whether there was a valid service of summons on petitioner for the trial
court to acquire jurisdiction over the person of the corporate defendant below, now the petitioner herein.

Petitioner contends that for the court to validly acquire jurisdiction over a domestic corporation, summons must
be served only on the corporate officers enumerated in Section 11,8 Rule 14 of the 1997 Rules of Civil
Procedure. Petitioner maintains that the alias summons was not validly served on it since the alias summons
was served on Marifa Dela Cruz, an employee of Dole Pacific General Services, Ltd., which is an entity
separate and distinct from petitioner. It further avers that even if she were an employee of the petitioner, she is
not one of the officers enumerated under Section 11, Rule 14. Thus, the RTC, without proper service of
summons, lacks jurisdiction over petitioner as defendant below.

Private respondent All Season, for its part, contends that the trial court had acquired jurisdiction over petitioner,
since petitioner received the alias summons through its president on April 23, 2003. According to private
respondent, there was full compliance with Section 11, Rule 14, when Marifa Dela Cruz received the summons
upon instruction of petitioner’s president as indicated in the Officer’s Return.9 More so, petitioner had admitted
that it received the alias summons in its Entry of Appearance with Motion for Time10 filed on May 5, 2003.

Well-settled is the rule that service of summons on a domestic corporation is restricted, limited and exclusive to
the persons enumerated in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, following the rule in
statutory construction that expressio unios est exclusio alterius.11 Service must therefore be made on the
president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

In this case, it appears that on April 23, 2003, Marifa Dela Cruz, a legal assistant, received the alias
summons.12Contrary to private respondent’s claim that it was received upon instruction of the president of the
corporation as indicated in the Officer’s Return, such fact does not appear in the receiving copy of the alias
summons which Marifa Dela Cruz signed. There was no evidence that she was authorized to receive court
processes in behalf of the president. Considering that the service of summons was made on a legal assistant,
not employed by herein petitioner and who is not one of the designated persons under Section 11, Rule 14, the
trial court did not validly acquire jurisdiction over petitioner.

However, under Section 20 of the same Rule, a defendant’s voluntary appearance in the action is equivalent to
service of summons.13 As held previously by this Court, the filing of motions seeking affirmative relief, such as,
to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of
default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court. 14

Note that on May 5, 2003, petitioner filed an Entry of Appearance with Motion for Time. It was not a conditional
appearance entered to question the regularity of the service of summons, but an appearance submitting to the
jurisdiction of the court by acknowledging the receipt of the alias summons and praying for additional time to
file responsive pleading.15 Consequently, petitioner having acknowledged the receipt of the summons and also
having invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time, petitioner
effectively submitted voluntarily to the jurisdiction of the RTC. It is estopped now from asserting otherwise,
even before this Court.16 The RTC therefore properly took cognizance of the case against Dole Philippines,
Inc., and we agree that the trial and the appellate courts committed no error of law when Dole’s contentions
were overruled.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated May 20, 2005 of the Court of
Appeals in CA-G.R. SP No. 87723 and its Resolution dated June 28, 2005 are AFFIRMED. Costs against
petitioner.

SO ORDERED.

PEDRO T. SANTOS, JR., G.R. No. 170943

Petitioner,

Present:

PUNO, C.J., Chairperson,

CARPIO,

- v e r s u s - CORONA,

AZCUNA and

LEONARDO-DE CASTRO, JJ.

PNOC EXPLORATION

CORPORATION,

Respondent. Promulgated:
September 23, 2008

x---------------------------------------------------x

DECISION

CORONA, J.:

This is a petition for review1 of the September 22, 2005 decision2 and December 29, 2005 resolution3 of the Court of
Appeals in CA-G.R. SP No. 82482.

On December 23, 2002, respondent PNOC Exploration Corporation filed a complaint for a sum of money against
petitioner Pedro T. Santos, Jr. in the Regional Trial Court of Pasig City, Branch 167. The complaint, docketed as Civil
Case No. 69262, sought to collect the amount of P698,502.10 representing petitioner’s unpaid balance of the car
loan4 advanced to him by respondent when he was still a member of its board of directors.

Personal service of summons to petitioner failed because he could not be located in his last known address despite earnest
efforts to do so. Subsequently, on respondent’s motion, the trial court allowed service of summons by publication.

Respondent caused the publication of the summons in Remate, a newspaper of general circulation in the Philippines, on
May 20, 2003. Thereafter, respondent submitted the affidavit of publication of the advertising manager of Remate 5 and an
affidavit of service of respondent’s employee6 to the effect that he sent a copy of the summons by registered mail to
petitioner’s last known address.

When petitioner failed to file his answer within the prescribed period, respondent moved that the case be set for the
reception of its evidence ex parte. The trial court granted the motion in an order dated September 11, 2003.

Respondent proceeded with the ex parte presentation and formal offer of its evidence. Thereafter, the case was deemed
submitted for decision on October 15, 2003.

On October 28, 2003, petitioner filed an "Omnibus Motion for Reconsideration and to Admit Attached Answer." He
sought reconsideration of the September 11, 2003 order, alleging that the affidavit of service submitted by respondent
failed to comply with Section 19, Rule 14 of the Rules of Court as it was not executed by the clerk of court. He also
claimed that he was denied due process as he was not notified of the September 11, 2003 order. He prayed that
respondent’s evidence ex parte be stricken off the records and that his answer be admitted.

Respondent naturally opposed the motion. It insisted that it complied with the rules on service by publication. Moreover,
pursuant to the September 11, 2003 order, petitioner was already deemed in default for failure to file an answer within the
prescribed period.

In an order dated February 6, 2004, the trial court denied petitioner’s motion for reconsideration of the September 11,
2003 order. It held that the rules did not require the affidavit of complementary service by registered mail to be executed
by the clerk of court. It also ruled that due process was observed as a copy of the September 11, 2003 order was actually
mailed to petitioner at his last known address. It also denied the motion to admit petitioner’s answer because the same was
filed way beyond the reglementary period.

Aggrieved, petitioner assailed the September 11, 2003 and February 6, 2004 orders of the trial court in the Court of
Appeals via a petition for certiorari. He contended that the orders were issued with grave abuse of discretion. He imputed
the following errors to the trial court: taking cognizance of the case despite lack of jurisdiction due to improper service of
summons; failing to furnish him with copies of its orders and processes, particularly the September 11, 2003 order, and
upholding technicality over equity and justice.

During the pendency of the petition in the Court of Appeals, the trial court rendered its decision in Civil Case No. 69262.
It ordered petitioner to pay P698,502.10 plus legal interest and costs of suit.7
Meanwhile, on September 22, 2005, the Court of Appeals rendered its decision8 sustaining the September 11, 2003 and
February 6, 2004 orders of the trial court and dismissing the petition. It denied reconsideration.9Thus, this petition.

Petitioner essentially reiterates the grounds he raised in the Court of Appeals, namely, lack of jurisdiction over his person
due to improper service of summons, failure of the trial court to furnish him with copies of its orders and processes
including the September 11, 2003 order and preference for technicality rather than justice and equity. In particular, he
claims that the rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in
rem, not actions in personam like a complaint for a sum of money. He also contends that the affidavit of service of a copy
of the summons should have been prepared by the clerk of court, not respondent’s messenger.

The petition lacks merit.

ProprietyOf

Service By Publication

Section 14, Rule 14 (on Summons) of the Rules of Court provides:

SEC. 14. Service upon defendant whose identity or whereabouts are unknown. – In any action where the defendant is
designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such times as the court may order. (emphasis supplied)

Since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts,
respondent sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of
general circulation. Thus, petitioner was properly served with summons by publication.

Petitioner invokes the distinction between an action in rem and an action in personam and claims that substituted service
may be availed of only in an action in rem. Petitioner is wrong. The in rem/in personamdistinction was significant under
the old rule because it was silent as to the kind of action to which the rule was applicable.10 Because of this silence, the
Court limited the application of the old rule to in rem actions only.11

This has been changed. The present rule expressly states that it applies "[i]n any action where the defendant is designated
as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry." Thus, it now applies to any action, whether in personam, in rem or quasi in rem.12

Regarding the matter of the affidavit of service, the relevant portion of Section 19,13 Rule 14 of the Rules of Court simply
speaks of the following:

… an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his last known address.

Service of summons by publication is proved by the affidavit of the printer, his foreman or principal clerk, or of the editor,
business or advertising manager of the newspaper which published the summons. The service of summons
by publication is complemented by service of summons by registered mail to the defendant’s last known address. This
complementary service is evidenced by an affidavit "showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address."

The rules, however, do not require that the affidavit of complementary service be executed by the clerk of court. While the
trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service
by registered mail is imposed on the party who resorts to service by publication.

Moreover, even assuming that the service of summons was defective, the trial court acquired jurisdiction over the
person of petitioner by his own voluntary appearance in the action against him. In this connection, Section 20, Rule
14 of the Rules of Court states:
SEC. 20. Voluntary appearance. – The defendant’s voluntary appearance in the action shall be equivalent to service
of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (emphasis supplied)

Petitioner voluntarily appeared in the action when he filed the "Omnibus Motion for Reconsideration and to Admit
Attached Answer."14 This was equivalent to service of summons and vested the trial court with jurisdiction over the
person of petitioner.

EntitlementTo

Notice Of Proceedings

The trial court allowed respondent to present its evidence ex parte on account of petitioner’s failure to file his answer
within the prescribed period. Petitioner assails this action on the part of the trial court as well as the said court’s failure to
furnish him with copies of orders and processes issued in the course of the proceedings.

The effects of a defendant’s failure to file an answer within the time allowed therefor are governed by Sections 3 and 4,
Rule 9 (on Effect of Failure to Plead) of the Rules of Court:

SEC. 3. Default; declaration of. – If the defending party fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as
his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.

SEC. 4. Effect of order of default. – A party in default shall be entitled to notice of subsequent proceedings but not to
take part in the trial. (emphasis supplied)

If the defendant fails to file his answer on time, he may be declared in default upon motion of the plaintiff with notice to
the said defendant. In case he is declared in default, the court shall proceed to render judgment granting the plaintiff such
relief as his pleading may warrant, unless the court in its discretion requires the plaintiff to submit evidence. The
defaulting defendant may not take part in the trial but shall be entitled to notice of subsequent proceedings.

In this case, even petitioner himself does not dispute that he failed to file his answer on time. That was in fact why he had
to file an "Omnibus Motion for Reconsideration and to Admit Attached Answer." But respondent moved only for the ex
parte presentation of evidence, not for the declaration of petitioner in default. In its February 6, 2004 order, the trial court
stated:

The disputed Order of September 11, 2003 allowing the presentation of evidence ex-parte precisely ordered that "despite
and notwithstanding service of summons by publication, no answer has been filed with the Court within the required
period and/or forthcoming.["] Effectively[,] that was a finding that the defendant [that is, herein petitioner] was in
default for failure to file an answer or any responsive pleading within the period fixed in the publication as precisely
the defendant [could not] be found and for which reason, service of summons by publication was ordered. It is simply
illogical to notify the defendant of the Order of September 11, 2003 simply on account of the reality that he was no longer
residing and/or found on his last known address and his whereabouts unknown – thus the publication of the summons. In
other words, it was reasonable to expect that the defendant will not receive any notice or order in his last known address.
Hence, [it was] impractical to send any notice or order to him. Nonetheless, the record[s] will bear out that a copy of
the order of September 11, 2003 was mailed to the defendant at his last known address but it was not claimed.
(emphasis supplied)

As is readily apparent, the September 11, 2003 order did not limit itself to permitting respondent to present its evidence ex
parte but in effect issued an order of default. But the trial court could not validly do that as an order of default can be
made only upon motion of the claiming party.15 Since no motion to declare petitioner in default was filed, no default order
should have been issued.
To pursue the matter to its logical conclusion, if a party declared in default is entitled to notice of subsequent proceedings,
all the more should a party who has not been declared in default be entitled to such notice. But what happens if the
residence or whereabouts of the defending party is not known or he cannot be located? In such a case, there is obviously
no way notice can be sent to him and the notice requirement cannot apply to him. The law does not require that the
impossible be done.16 Nemo tenetur ad impossibile. The law obliges no one to perform an impossibility.17 Laws and rules
must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.18

Hence, even if petitioner was not validly declared in default, he could not reasonably demand that copies of orders and
processes be furnished him. Be that as it may, a copy of the September 11, 2003 order was nonetheless still mailed to
petitioner at his last known address but it was unclaimed.

CorrectnessOf

Non-Admission Of Answer

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

Petitioner’s plea for equity must fail in the face of the clear and express language of the rules of procedure and of the
September 11, 2003 order regarding the period for filing the answer. Equity is available only in the absence of law, not as
its replacement.19 Equity may be applied only in the absence of rules of procedure, never in contravention thereof.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

G.R. No. 213525 January 27, 2015

FORTUNE LIFE INSURANCE COMPANY, INC., Petitioner,

vs.
COMMISSION ON AUDIT (COA) PROPER; COA REGIONAL OFFICE NO. VI-WESTERN VISAYAS; AUDIT
GROUP LGS-B, PROVINCE OF ANTIQUE; AND PROVINCIAL GOVERNMENT OF
ANTIQUE, Respondents.

RESOLUTION

BERSAMIN, J.:

Petitioner Fortune Life Insurance Company, Inc. seeks the Reconsideration1 of the resolution promulgated on
August 19, 2014,2 whereby the Court dismissed its petition for certiorari under Rule 64 in relation to Rule 65 of
the Rules of Courtdue to its non-compliance with the provisions of Rule 64, particularly for:(a) the late filing of
the petition; (b) the non-submission of the proof of service and verified declaration; and (c) the failure to show
grave abuse of discretion on the part of the respondents.3

Antecedents

Respondent Provincial Government of Antique (LGU) and the petitioner executed a memorandum of
agreement concerning the life insurance coverage of qualified barangaysecretaries, treasurers and tanod, the
former obligating ₱4,393,593.60for the premium payment, and subsequently submitting the corresponding
disbursement voucher to COA Antique for pre-audit.4 The latter office disallowed the payment for lack of legal
basis under Republic Act No. 7160 (Local Government Code). Respondent LGU appealed but its appeal was
denied.
Consequently, the petitioner filed its petition for money claim in the COA. 5 On November 15, 2012, the COA
issued its decision denying the petition,6 holding that under Section 447 and Section 458 of the Local
Government Code only municipal or city governments are expressly vested with the power to secure group
insurance coverage for barangayworkers; and noting the LGU’s failure to comply with the requirement of
publication under Section 21 of Republic Act No. 9184 (Government Procurement Reform Act).

The petitioner received a copy of the COA decision on December 14, 2012,7 and filed its motion for
reconsideration on January 14, 2013.8 However, the COA denied the motion,9 the denial being received by the
petitioner on July 14, 2014.10

Hence, the petitioner filed the petition for certiorari on August 12, 2014, but the petition for certiorari was
dismissed as earlier stated through the resolution promulgated on August 19,2014 for (a) the late filing of the
petition; (b) the non-submission of the proof of service and verified declaration; and (c) the failure to show
grave abuse of discretion on the part of the respondents.

Issues

In its motion for reconsideration, the petitioner submits that it filed the petition for certiorari within the
reglementary period following the fresh period rule enunciated in Neypes v. Court of Appeals; 11 and that the
petition for certiorari included an affidavit of service in compliance with Section 3, Rule 13 of the Rules of
Court. It admits having overlooked the submission of a verified declaration; and prays that the declaration
attached to the motion for reconsideration be admitted by virtue of its substantial compliance with the Efficient
Use of Paper Rule12 by previously submitting a compact disc (CD) containing the petition for certiorari and its
annexes. It disagrees with the Court, insisting that it showed and proved grave abuse of discretion on the part
of the COA in issuing the assailed decision.

Ruling

We deny the motion for reconsideration for being without merit.

Petitioner did not comply with

the rule on proof of service

The petitioner claims that the affidavit of service attached to the petition for certiorari complied with the
requirement on proof of service.

The claim is unwarranted. The petitioner obviously ignores that Section 13, Rule 13 of the Rules of Court
concerns two types of proof of service, namely: the affidavit and the registry receipt, viz: Section 13. Proof of
Service. – x x x. 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. Section 13 thus requires that if the service is done by registered mail, proof
of service shall consist of the affidavit of the person effecting the mailing and the registry receipt, both of which
must be appended to the paper being served. A compliance withthe rule is mandatory, such that

there is no proof of service if either or both are not submitted.13

Here, the petition for certiorari only carried the affidavit of service executed by one Marcelino T. Pascua, Jr.,
who declared that he had served copies of the petition by registered mail "under Registry Receipt Nos. 70449,
70453, 70458,70498 and 70524 attached tothe appropriate spaces found on pages 64-65 of the
petition."14 The petition only bore, however, the cut print-outs of what appeared to be the registry receipt
numbers of the registered matters, not the registry receipts themselves. The rule requires to be appended the
registry receipts, nottheir reproductions. Hence, the cut print-outs did not substantially comply with the rule.
This was the reason why the Court held in the resolution of August 19, 2014 that the petitioner did not comply
with the requirement of proof of service.15

II

Fresh Period Ruleunder Neypes

did not apply to the petition for certiorari
under Rule 64 of the Rules of Court

The petitioner posits that the fresh period rule applies because its Rule 64 petition is akin to a petition for
review brought under Rule 42 of the Rules of Court; hence, conformably with the fresh period rule, the period
to file a Rule 64 petition should also be reckoned from the receipt of the order denying the motion for
reconsideration or the motion for new trial.16

The petitioner’s position cannot be sustained.

There is no parity between the petition for review under Rule 42 and the petition for certiorari under Rule 64.

As to the nature of the procedures, Rule 42 governs an appeal from the judgment or final order rendered by
the Regional Trial Court in the exercise of its appellate jurisdiction. Such appeal is on a question of fact, or of
law, or of mixed question of fact and law, and is given due course only upon a prima facie showing that the
Regional Trial Court committed an error of fact or law warranting the reversal or modification of the challenged
judgment or final order.17 In contrast, the petition for certiorari under Rule 64 is similar to the petition for
certiorari under Rule 65, and assails a judgment or final order of the Commission on Elections (COMELEC), or
the Commission on Audit (COA). The petition is not designed to correct only errors of jurisdiction, not errors of
judgment.18 Questions of fact cannot be raised except to determine whether the COMELEC or the COA were
guilty of grave abuse of discretion amounting to lack or excess of jurisdiction.

The reglementary periods under Rule42 and Rule 64 are different. In the former, the aggrieved party is allowed
15 days to file the petition for review from receipt of the assailed decision or final order, or from receipt of the
denial of a motion for new trial or reconsideration.19 In the latter, the petition is filed within 30 days from notice
of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration, if allowed under the procedural rules of the Commission concerned, interrupts the period;
hence, should the motion be denied, the aggrieved party may file the petition within the remaining period,
which shall not be less than five days in any event, reckoned from the notice of denial.20

The petitioner filed its motion for reconsideration on January 14, 2013, which was 31 days after receiving the
assailed decision of the COA on December 14, 2012.21 Pursuant to Section 3 of Rule 64, it had only five days
from receipt of the denial of its motion for reconsideration to file the petition. Considering that it received the
notice of the denial on July 14, 2014, it had only until July19, 2014 to file the petition. However, it filed the
petition on August 13, 2014, which was 25 days too late.

We ruled in Pates v. Commission on Elections22 that the belated filing of the petition for certiorari under Rule
64 on the belief that the fresh period ruleshould apply was fatal to the recourse. As such, the petitioner herein
should suffer the same fate for having wrongly assumed that the fresh period rule under Neypes23 applied.
Rules of procedure may be relaxed only to relieve a litigant of an injustice that is not commensurate with the
degree of his thoughtlessness in not complying with the prescribed procedure.24 Absent this reason for
liberality, the petition cannot be allowed to prosper.

III

Petition for certiorari further lacked merit

The petition for certiorari is also dismissible for its lack of merit.
The petitioner insists on having fully shown that the COA committed grave abuse of discretion, to wit: (1) the
challenged decision was rendered by a divided COA proper; (2) the COA took almost a year before
promulgating its decision, and more thana year in resolving the motion for reconsideration, in contravention of
the express mandate of the Constitution; (3) the resolution denying the motion for reconsideration was made
up of only two sentences; (4) the matter involved a novel issue that called for an interpretation of the pertinent
provisions of the Local Government Code; and (5) in issuing the resolution, COA Commissioners Grace
Pulido-Tan and Heidi L. Mendoza made it appear that they knew the Local Government Code better than
former Senator Aquilino Pimentel who offered an opinion on the matter.25

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as to be equivalent to
lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason
of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an
evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in
contemplation of law.26

A close look indicates that the petition for certioraridid not sufficiently disclose how the COA committed grave
abuse of its discretion. For sure, the bases cited by the petitioner did not approximate grave abuse of
discretion. To start with, the supposed delays taken by the COA in deciding the appeal were neither arbitrary
nor whimsical on its part. Secondly, the mere terseness of the denial of the motion for reconsideration was not
a factor in demonstrating an abuse of discretion. And, lastly, the fact that Senator Pimentel, even if he had
been the main proponent of the Local Government Codein the Legislature, expressed an opinion on the issues
different from the COA Commissioners’ own did not matter, for it was the latter’s adjudication that had any
value and decisiveness on the issues by virtue of their being the Constitutionally officials entrusted with the
authority for that purpose.

It is equally relevant to note that the COA denied the money claim of the petitioner for the further reason of lack
of sufficient publication as required by the Government Procurement Act. In that light, the COA acted well
within its authority in denying the petitioner’s claim.

IV

Petitioner and its counsel

exhibited harshness and disrespect
towards the Court and its Members

The petitioner contends that the Court erred in appreciating the petitioner’s non-compliance with the
requirement of the proof of service, alleging that even "a perfunctory scrutiny" of the petition for certiorari and
its annexes could have easily shown that it had attached an affidavit of service to the petition. It goes on to
make the following statements, viz:

25. Apparently, the staff of the Justice-in-charge failed to verify the PETITION and its annexes up to its last
page, thus, the erroneous finding that there was non-submission of the proof of service; 26. In turn, the same
omission was hoisted upon the other members of this Honorable Court who took the observation from the
office of the Justice-in-charge, to be the obtaining fact, when in truth and in fact, it is not;27

The petitioner and its counsel thereby exhibited their plain inability to accept the ill consequences of their own
shortcomings, and instead showed an unabashed propensity to readily lay blame on others like the Court and
its Members. In doing so, they employed harsh and disrespectful language that accused the Court and its
Members of ignorance and recklessness in the performance of their function of adjudication.

We do not tolerate such harsh and disrespectful language being uttered against the Court and its Members.
We consider the accusatory language particularly offensive because it was unfounded and undeserved. As this
resolution earlier clarifies, the petition for certiorari did not contain a proper affidavit of service.We do not need
to rehash the clarification. Had the petitioner and its counsel been humbler to accept their self-inflicted situation
and more contrite, they would have desisted from their harshness and disrespect towards the Court and its
Members. Although we are not beyond error, we assure the petitioner and its counsel that our resolutions and
determinations are arrived at or reached with much care and caution, aware that the lives, properties and rights
of the litigants are always at stake. If there be errors, they would be unintended, and would be the result of
human oversight. But in this instance the Court and its Members committed no error. The petition bore only cut
reproductions of the supposed registry receipts, which even a mere "perfunctory scrutiny" would not pass as
the original registry receipts required by the Rules of Court.

Accordingly, the petitioner and its counsel, Atty. Eduardo S. Fortaleza, should fully explain in writing why they
should not be punished for indirect contempt of court for their harsh and disrespectful language towards the
Court and its Members; and, in his case, Atty. Fortaleza should further show cause why he should" not be
disbarred.

WHEREFORE, the Court DENIES the Motion for Reconsideration for its lack of merit; ORDERS the petitioner
and its counsel, Atty. Eduardo S. Fortaleza, to show cause in writing within ten (10) days from notice why they
should not be punished for indirect contempt of court; and FURTHER DIRECTS Atty. Fortaleza to show cause
in the same period why he should not be disbarred.

SO ORDERED.

G.R. No. 206653 February 25, 2015

YUK LING ONG, Petitioner,

vs.
BENJAMIN T. CO, Respondent.

DECISION

MENDOZA, J.:

In court proceedings, there is no right more cherished than the right of every litigant to be given an opportunity
to be heard. This right begins at the very moment that summons is served on the defendant. The Rules of
Court places utmost importance in ensuring that the defendant personally grasp the weight of responsibility
that will befall him. Thus, it is only in exceptional circumstances that constructive notification, or substituted
service of summons, is allowed. If the server falls short of the rigorous requirements for substituted service of
summons, then the Court has no other option but to strike down a void judgment, regardless of the
consequences. This is a petition for review on certiorari seeking to reverse and set aside the June 27, 2012
Decision1 and the March 26, 2013 Resolution2 of the Court of Appeals (CA)in CA-G.R. SP No. 106271, which
denied the petition for annulment of judgment.

The Facts

Petitioner Yuk Ling Ong (petitioner), a British-Hong Kong national, and respondent Benjamin Co (respondent),
a Filipino citizen, were married on October 3, 1982 at Ellinwood-Malate Church.3

Sometime in November 2008, petitioner received a subpoena from the Bureau of Immigration and Deportation
(BID)directing her to appear before the said agency because her permanent residence visa was being
subjected to cancellation proceedings. Reportedly, her marriage with respondent was nullified by the court.

When petitioner appeared before the BID, she was furnished with the copies of the following documents: (1)
petition for declaration of nullity of marriage filed as Civil Case No. CV-01-0177; (2) petition for declaration of
nullity of marriage docketed as Civil Case No. 02-0306; (3) Decision,4 dated December 11, 2002, in Civil Case
No. 02-0306 of the Regional Trial Court, Branch 260 (RTC), Parañaque City, declaring the marriage between
petitioner and respondent as void ab initio; and (4) their marriage contract 5 with the subject decision annotated
thereon. Petitioner was perplexed that her marriage with respondent had been declared void ab initio. The
above documents showed that on April 26, 2001, respondent filed a petition for declaration of nullity6 on the
ground of psychological incapacity before the RTC, which was docketed as Civil Case No. CV-01-0177.
Respondent stated that petitioner’s address was 600 Elcano St., Binondo, Manila. There was no showing of its
status, whether pending, withdrawn or terminated. On July 19, 2002, respondent filed another petition for
declaration of Nullity7 on the ground of psychological incapacity before the RTC, docketed as Civil Case No.
02-0306. Respondent indicated that petitioner’s address was 23 Sta. Rosa Street, Unit B-2 Manresa Garden
Homes, Quezon City. On July 29, 2002, the RTC issued summons.8 In his Server’s Return,9 process server
Rodolfo Torres, Jr. stated that, on August 1, 2002, substituted service of summons with the copy of the petition
was effected after several futile attempts to serve the same personally on petitioner. The said documents were
received by Mr. Roly Espinosa, a security officer.

On December 11, 2002, the RTC rendered a decision10 in Civil Case No. 02-0306 finding respondent’s
marriage with petitioner as void ab initio on the ground of psychological incapacity under Article 36 of the
Family Code. It stated that summons was served on petitioner on August 1, 2002, but she failed to file her
responsive pleading within the reglementary period. The public prosecutor also stated that there were no
indicative facts to manifest collusion. Thus, the RTC concluded that petitioner was psychologically
incapacitated to perform her essential marital obligations.

Consequently, petitioner filed a petition for annulment of judgment11 under Rule 47 of the Rules of Court before
the CA on November 24, 2008, claiming that she was never notified of the cases filed against her. She prayed
that the RTC decision, dated December 11, 2002, in Civil Case No. 02-0306, be nullified on the grounds of
extrinsic fraud and lack of jurisdiction. Petitioner alleged that first, respondent committed extrinsic fraud
because, as seen in Civil Case No. CV-01-0177, he deliberately indicated a wrong address to prevent her from
participating in the trial; second, jurisdiction over her person was not acquired in Civil Case No. 02-0306
because of an invalid substituted service of summons as no sufficient explanation, showing impossibility of
personal service, was stated before resorting to substituted service of summons; third, the alleged substituted
service was made on a security guard of their townhouse and not on a member of her household; and fourth,
she was not psychologically incapacitated to perform her marital obligations.12

Ruling of the Court of Appeals

On June 27, 2012, the CA rendered the assailed decision finding the petition for annulment of judgment to be
devoid of merit. It held that there was no sufficient proof to establish that respondent employed fraud to insure
petitioner’s non-participation in the trial of Civil Case No. CV-01-0177.

Relying on Robinson v. Miralles,13 the CA further ruled that the substituted service of summons in Civil Case
No. 02-0306 was valid. It found that there was a customary practice in petitioner’s townhouse that the security
guard would first entertain any visitors and receive any communication in behalf of the homeowners. With this
set-up, it was obviously impossible for the process server to personally serve the summons upon petitioner. It
also declared that the process server’s return carries with it the presumption of regularity in the discharge of a
public officer’s duties and functions.

Petitioner moved for reconsideration, but her motion was denied by the CA in its Resolution,14 dated March 26,
2013.

Hence, this petition, anchored on the following

ISSUES

1. Whether or not the Trial Court in Civil Case No. 02-0306 validly acquired jurisdiction over the person
of the petitioner.

2. Whether or not the facts proven by the petitioner constitute extrinsic fraud within the purview of Rule
47 of the Rules of Court.15
Petitioner argues that there was an invalid substituted service of summons.1âwphi1 The process server’s
return only contained a general statement that substituted service was resorted to "after several futile attempts
to serve the same personally,"16 without stating the dates and reasons of the failed attempts. Petitioner also
reiterates her argument that extrinsic fraud was employed.

In his Comment,17 filed on July 9, 2014, respondent contended that the server’s return satisfactorily stated the
reason for the resort to a substituted service of summons on August 1, 2002; and it was improbable that
petitioner failed to receive the summons because it was sent to the same address which she declared in this
present petition.

Petitioner filed her Reply18 on October 8, 2014 reiterating her previous arguments.

The Court’s Ruling

The Court finds merit in the petition.

Annulment of judgment is a recourse equitable in character, allowed only in exceptional cases as where there
is no available or other adequate remedy. Rule 47 of the 1997 Rules of Civil Procedure, as amended, governs
actions for annulment of judgments or final orders and resolutions, and Section 2 thereof explicitly provides
only two grounds for annulment of judgment, that is, extrinsic fraud and lack of jurisdiction.19 Annulment of
judgment is an equitable principle not because it allows a party-litigant another opportunity to reopen a
judgment that has long lapsed into finality but because it enables him to be discharged from the burden of
being bound to a judgment that is an absolute nullity to begin with.20

Petitioner raises two grounds to support her claim for annulment of judgment: (1) extrinsic fraud and (2) lack of
jurisdiction. Her contention on the existence of extrinsic fraud, however, is too unsubstantial to warrant
consideration. The discussion shall then focus on the ground of lack of jurisdiction.

Lack of jurisdiction on the part of the trial court in rendering the judgment or final order is either lack of
jurisdiction over the subject matter or nature of the action, or lack of jurisdiction over the person of the
petitioner. The former is a matter of substantive law because statutory law defines the jurisdiction of the courts
over the subject matter or nature of the action. The latter is a matter of procedural law, for it involves the
service of summons or other processes on the petitioner.21

In the present case, petitioner contends that there was lack of jurisdiction over her person because there was
an invalid substituted service of summons. Jurisdiction over the defendant is acquired either upon a valid
service of summons or the defendant's voluntary appearance in court.22 If the defendant does not voluntarily
appear in court, jurisdiction can be acquired by personal or substituted service of summons as laid out under
Sections 6 and 7 of Rule 14 of the Rules of Court, which state:

Sec. 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

Sec. 7. Substituted Service. - If, for justifiable causes, the defendant cannot be served within a reasonable time
as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some competent person in charge thereof.

The landmark case of Manotoc v. CA (Manotoc)23 thoroughly discussed the rigorous requirements of a
substituted service of summons, to wit: xxx

(1) Impossibility of Prompt Personal Service

xxx
For substituted service of summons to be available, there must be several attempts by the sheriff to personally
serve the summons within a reasonable period of one month which eventually resulted in failure to prove
impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two
different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.

(2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted
personal service. The efforts made to find the defendant and the reasons behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to
locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other
acts done, though futile, to serve the summons on defendant must be specified in the Return to justify
substituted service.

(3) A Person of Suitable Age and Discretion

xxx

The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of
legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least
notify the defendant of said receipt of summons. These matters must be clearly and specifically described in
the Return of Summons. (Emphases and underscoring supplied)

The pronouncements of the Court in Manotoc have been applied to several succeeding cases. In Pascual v.
Pascual,24 the return of summons did not show or indicate the actual exertion or positive steps taken by the
officer or process server in serving the summons personally to the defendant. Similarly, in Spouses Afdal v.
Carlos,25 the process server’s indorsements therein failed to state that the personal service on the defendants
was rendered impossible and that efforts were made to find them personally. In both those cases, the Court
ruled that the meticulous requirements for substituted service of summons were not met.

There are cases, however, in which Manotoc was applied, but, nevertheless, it was ruled that there was no
lack of jurisdiction over the person of the defendant. In Sagana v. Francisco,26 the diligent efforts exerted by
the sheriff to locate the respondent were determined, not only based on the sheriff's return, but also on the
process server's notation and case records. In the case of Wong v. Factor-Koyama,27 on the other hand, even
if the sheriff performed an invalid substituted service of summons, jurisdiction over the person of defendant
was obtained because the latter had actively participated in trial, amounting to a voluntary appearance under
Section 20 of Rule 14.28

In the case at bench, the summons in Civil Case No. 02-030629 was issued on July 29, 2002. In his server’s
return,30the process server resorted to substituted service of summons on August 1, 2002. Surprisingly, the
process server immediately opted for substituted service of summons after only two (2) days from the issuance
of the summons. The server’s return stated the following:

SERVER’S RETURN

THIS IS TO CERTIFY THAT on August 1, 2002, substituted service of summons with copy of petition, were
effected to respondent, Yuk Ling H. Ong, at the Unit B-2, No. 23 Sta. Rosa St., Manresa Garden Homes,
Manresa Garden City, Quezon City, after several futile attempts to serve the same personally. The said
documents were received by Mr. Roly Espinosa of sufficient age and discretion, the Security Officer thereat.

Therefore, respectfully returning to Court, original copy of summons, Duly Served, this 2nd day of August,
2002.
RODOLFO P. TORRES, JR.
Process Server

(Emphasis supplied)

The server’s return utterly lacks sufficient detail of the attempts undertaken by the process server to personally
serve the summons on petitioner. The server simply made a general statement that summons was effected
after several futile attempts to serve the same personally. The server did not state the specific number of
attempts made to perform the personal service of summons; the dates and the corresponding time the
attempts were made; and the underlying reason for each unsuccessful service. He did not explain either if
there were inquiries made to locate the petitioner, who was the defendant in the case. These important acts to
serve the summons on petitioner, though futile, must be specified in the return to justify substituted service.

The server’s return did not describe in detail the person who received the summons, on behalf of petitioner. It
simply stated that the summons was received "by Mr. Roly Espinosa of sufficient age and discretion, the
Security Officer thereat." It did not expound on the competence of the security officer to receive the summons.

Also, aside from the server’s return, respondent failed to indicate any portion of the records which would
describe the specific attempts to personally serve the summons. Respondent did not even claim that petitioner
made any voluntary appearance and actively participated in Civil Case No. 02-0306.

The case of Robinson v. Miralles, cited by the CA, is not applicable. In that case, the return described in
thorough detail how the security guard refused the sheriff’s entry despite several attempts. The defendant in
the said case specifically instructed the guard to prevent anybody to proceed to her residence. In the present
case, the attempts made by the process server were stated in a broad and ambiguous statement.

The CA likewise erred in ruling that the presumption of regularity in the performance of official duty could be
applied in the case at bench. This p resumption of regularity, however, was never intended to be applied even
in cases where there are no showing of substantial compliance with the requirements of the rules of procedure.
Such presumption does not apply where it is patent that the sheriff's or server's return is defective.31 As earlier
explained, the server's return did not comply with the stringent requirements of substituted service of
summons.

Given that the meticulous requirements in Manotoc were not met, the Court is not inclined to uphold the CA's
denial of the petition for annulment of judgment for lack of jurisdiction over the person of petitioner because
there was an invalid substituted service of summons. Accordingly, the decision in Civil Case No. 02-0306 must
be declared null and void.

The stricter rule in substituted service of summons was meant to address "[t]he numerous claims of
irregularities in substituted service which have spawned the filing of a great number of unnecessary special
civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful legal
expenses."32

Although the decision in Civil Case No. 02-0306 was promulgated as early as December 11, 2002, the Court
must strike it down for lack of jurisdiction over the person of petitioner. The favorable judgment enjoyed by
respondent cannot be categorized as a genuine victory because it was fought against an adversary, who was
ignorant of the existing dispute. Whatever prize bestowed upon the victor in such a void decision must also be
undone. Respondent, if he wishes to pursue, must start from scratch and institute his action for declaration of
nullity again; this time with petitioner fully aware and ready for litigation.

WHEREFORE, the petition is GRANTED. The June 27, 2012 Decision and the March 26, 2013 Resolution of
the Court of Appeals in CAG.R. SP No. 106271 are hereby REVERSED and SET ASIDE. The December 11,
2002 Decision of the Regional Trial Court, Branch 260, Parañaque City is hereby declared VOID.

SO ORDERED.
G.R. No. 181517 July 6, 2015

GREEN STAR EXPRESS, INC. and FRUTO SAYSON, JR., Petitioners,

vs.
NISSIN-UNIVERSAL ROBINA CORPORATION, Respondent.

DECISION

PERALTA, J.:

For resolution is a Petition for Review under Rule 45 of the Rules of Court which petitioners Green Star
Express, Inc. and Fruto Sayson, Jr. brought before the Court, assailing the Decision 1 of the Court of Appeals
(CA) dated September 17, 2007 and its Resolution2 dated January 22, 2008 in CA-G.R. SP No. 86824. The
CA nullified the Resolution dated May 5, 2004 of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch
31, in Civil Case No. SPL-0969, and dismissed the complaint for lack of jurisdiction.

The following are the antecedents of the case:

On February 25, 2003, a Mitsubishi L-300 van which Universal Robina Corporation ( URC) owned figured in a
vehicular accident with petitioner Green Star Express, Inc.' s (Green Star) passenger bus, resulting in the
death of the van's driver. Thus, the bus driver, petitioner Fruto Sayson, Jr., was charged with the crime of
reckless imprudence resulting in homicide.

Thereafter, Green Star sent a demand letter to respondent NissinUniversal Robina Corporation (NURC) for the
repair of its passenger bus amounting to ₱567, 070.68. NURC denied any liability therefore and argued that
the criminal case shall determine the ultimate liabilities of the parties. Thereafter, the criminal case was
dismissed without prejudice, due to insufficiency of evidence.

Sayson and Green Star then filed a complaint for damages against NURC before the R TC of San Pedro,
Laguna. Francis Tinio, one of NURC's employees, was the one who received the summons. On February 6,
2004, NURC filed a Motion to Dismiss claiming lack of jurisdiction due to improper service.

On May 5, 2004, the RTC issued a Resolution denying NURC's motion to dismiss. It ruled that there was
substantial compliance because there was actual receipt of the summons by NURC. The dispositive portion of
said Resolution thus reads:

WHEREFORE, in view of the foregoing, defendant's "Motion to Dismiss" is hereby DENIED.3

Since its Motion for Reconsideration was denied, NURC elevated the case to the CA via a Petition for
Certiorari. On September 17, 2007, the CA reversed the RTC ruling, hence:

WHEREFORE, the instant Petition for Certiorari is GRANTED. The assailed Resolutions, dated May 5, 2004
and dated July 26, 2004, of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Civil Case No. SPL-
0969, are hereby NULLIFIED and a new one rendered granting Petitioner's Motion to Dismiss, dated February
3, 2004. Private Respondents' Amended Complaint for Damages filed against Petitioner Nissin-Universal
Robina Corporation is accordingly dismissed for lack of jurisdiction.

SO ORDERED.4

Aggrieved, Green Star and Sayson moved for reconsideration, but the same was denied. Hence, this petition.

The lone issue is whether or not the summons was properly served on NURC, vesting the trial court with
jurisdiction.

The petition is benefit of merit.

It is a well-established rule that the rules on service of summons upon a domestic private juridical entity must
be strictly complied with. Otherwise, the court cannot be said to have acquired jurisdiction over the person of
the defendant.5

NURC maintains that the RTC did not acquire jurisdiction over it as the summons was received by its cost
accountant, Francis Tinio.1âwphi1 It argues that under Section 11, Rule 14 of the 1997 Rules of Court, which
provides the rule on service of summons upon a juridical entity, in cases where the defendant is a domestic
corporation like NURC, summons may be served only through its officers. 6 Thus:

Section 11. Service upon domestic private juridical entity. – When the defendant is a corporation, partnership
or association organized under the laws of the Philippines with a juridical personality, service may be made on
the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.7

This provision replaced the former Section 13, Rule 14 of the 1964 Rules of Court which read:

Section 13. Service upon private domestic corporation or partnership. - If the defendant is a corporation
organized under the laws of the Philippines or a partnership duly registered, service may be made on the
president, manager, secretary, cashier, agent, or any of its directors.8

In the past, the Court upheld service of summons upon a construction project manager, a corporation’s
assistant manager, and ordinary clerk of a corporation, private secretary of corporate executives, retained
counsel, and officials who had control over the operations of the corporation like the assistant general manager
or the corporation’s Chief Finance and Administrative Officer. The Court then considered said persons as
"agent" within the contemplation of the old rule. Notably, under the new Rules, service of summons upon an
agent of the corporation is no longer authorized,9 The rule now likewise states "general manager" instead of
"manager"; "corporate secretary" instead of merely "secretary"; and "treasure" instead of "cashier."10 It has now
become restricted, limited, and exclusive only to the persons enumerated in the aforementioned provision,
following the rule in statutory construction that the express mention of one person excludes all others, or
expression unions est exclusion alterius. Service must, therefore, be made only on the person expressly listed
in the rules.11 If the revision committee intended to liberalize the rule on service of summons, it could have
easily done so by clear and concise language.12

Here, Tinio, a, member of NURC’s accounting staff, received the summons on January 22, 2004. Green star
claims that it was received upon instruction of Junadette Avedillo. The general manager of the corporation.
Such fact, however, does not appear in the Sheriff’s Return.13 The Return did not even state whether Avedillo
was present at the time the summons was received by Tinio, the supposed assistant manager. Green Star
further avers that the sheriff tendered the summons, but Avedillo simply refused to sign and receive the same.
She then allegedly instructed Tinio to just receive it in her behalf. However, Green Star never presented said
sheriff as witness during the hearing of NURC’s motion to dismiss to attest to said claim. And while the sheriff
executed an affidavit which appears to support such allegation, the same was likewise not presented as
evidence. It was only when the case was already before the CA that said affidavit first surfaced. Since the
service of summons was made on a cost accountant, which is not one of the designated persons under
Section 11 of Rule 14, the trial court did not vadily acquire jurisdiction over NURC,14 although the corporation
may have actually received the summons.15 To rule otherwise will be an outright circumvention of the rules,
aggravating further the delay in the administration of justice.16

At this juncture, it is worth emphasizing that notice to enable the other party to be heard and to present
evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service
of summons is a vital and indispensable ingredient of due process. Corporations would be easily deprived of
their right to present their defense in a multi-million peso suit, if the Court would disregard the mandate of the
Rules on the service of summons.17

WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated September 17, 2007 and
Resolution dated January 22, 2008 in CA-G.R. SP No. 86824 are hereby AFFIRMED.
SO ORDERED.

G.R. No. 206147

MICHAEL C. GUY, Petitioner,

vs.
ATTY. GLENN C. GACOTT, Respondent.

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner
Michael C. Guy (Guy), assailing the June 25, 2012 Decision1 and the March 5, 2013 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CV No. 94816, which affirmed the June 28, 20093 and February 19, 20104 Orders of
the Regional Trial Court, Branch 52, Puerto Princesa City, Palawan (RTC), in Civil Case No. 3108, a case for
damages. The assailed RTC orders denied Guy's Motion to Lift Attachment Upon Personalty5 on the ground
that he was not a judgment debtor.

The Facts

It appears from the records that on March 3, 1997, Atty. Glenn Gacott (Gacott) from Palawan purchased two
(2) brand new transreceivers from Quantech Systems Corporation (QSC) in Manila through its employee Rey
Medestomas (Medestomas), amounting to a total of P18,000.00. On May 10, 1997, due to major defects,
Gacott personally returned the transreceivers to QSC and requested that they be replaced. Medestomas
received the returned transreceivers and promised to send him the replacement units within two (2) weeks
from May 10, 1997.

Time passed and Gacott did not receive the replacement units as promised. QSC informed him that there were
no available units and that it could not refund the purchased price. Despite several demands, both oral and
written, Gacott was never given a replacement or a refund. The demands caused Gacott to incur expenses in
the total amount of P40,936.44. Thus, Gacott filed a complaint for damages. Summons was served upon QSC
and Medestomas, afterwhich they filed their Answer, verified by Medestomas himself and a certain Elton
Ong (Ong). QSC and Medestomas did not present any evidence during the trial.6

In a Decision,7 dated March 16, 2007, the RTC found that the two (2) transreceivers were defective and that
QSC and Medestomas failed to replace the same or return Gacott's money. The dispositive portion of the
decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff, ordering the defendants to jointly and
severally pay plaintiff the following:

1. Purchase price plus 6% per annum from P

March 3, 1997 up to and until fully paid ------------ 18,000.00
2. Actual Damages ----------------------------------- 40,000.00
3. Moral Damages ----------------------------------- 75,000.00
4. Corrective Damages ------------------------------- 100,000.00
5. Attorney’s Fees ------------------------------------ 60,000.00
6. Costs.

SO ORDERED.
The decision became final as QSC and Medestomas did not interpose an appeal. Gacott then secured a Writ
of Execution,8 dated September 26, 2007.

During the execution stage, Gacott learned that QSC was not a corporation, but was in fact a general
partnership registered with the Securities and Exchange Commission (SEC). In the articles of
partnership,9 Guy was appointed as General Manager of QSC.

To execute the judgment, Branch Sheriff Ronnie L. Felizarte (Sheriff Felizarte) went to the main office of the
Department of Transportation and Communications, Land Transportation Office (DOTC-LTO), Quezon City,
and verified whether Medestomas, QSC and Guy had personal properties registered therein.10 Upon learning
that Guy had vehicles registered in his name, Gacott instructed the sheriff to proceed with the attachment of
one of the motor vehicles of Guy based on the certification issued by the DOTC-LTO.11

On March 3, 2009, Sheriff Felizarte attached Guy’s vehicle by virtue of the Notice of Attachment/Levy upon
Personalty12 served upon the record custodian of the DOTC-LTO of Mandaluyong City. A similar notice was
served to Guy through his housemaid at his residence.

Thereafter, Guy filed his Motion to Lift Attachment Upon Personalty, arguing that he was not a judgment debtor
and, therefore, his vehicle could not be attached.13 Gacott filed an opposition to the motion.

The RTC Order

On June 28, 2009, the RTC issued an order denying Guy’s motion. It explained that considering QSC was not
a corporation, but a registered partnership, Guy should be treated as a general partner pursuant to Section 21
of the Corporation Code, and he may be held jointly and severally liable with QSC and Medestomas. The trial
court wrote:

All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as
general partners for all debts, liabilities and damages incurred or arising as a result thereof x x x. Where, by
any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership x x
x, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the
partnership is liable therefore to the same extent as the partner so acting or omitting to act. All partners are
liable solidarily with the partnership for everything chargeable to the partnership under Article 1822 and 1823. 14

Accordingly, it disposed:

WHEREFORE, with the ample discussion of the matter, this Court finds and so holds that the property of
movant Michael Guy may be validly attached in satisfaction of the liabilities adjudged by this Court against
Quantech Co., the latter being an ostensible Corporation and the movant being considered by this Court as a
general partner therein in accordance with the order of this court impressed in its decision to this case
imposing joint and several liability to the defendants. The Motion to Lift Attachment Upon Personalty submitted
by the movant is therefore DENIED for lack of merit.

SO ORDERED.15

Not satisfied, Guy moved for reconsideration of the denial of his motion. He argued that he was neither
impleaded as a defendant nor validly served with summons and, thus, the trial court did not acquire jurisdiction
over his person; that under Article 1824 of the Civil Code, the partners were only solidarily liable for the
partnership liability under exceptional circumstances; and that in order for a partner to be liable for the debts of
the partnership, it must be shown that all partnership assets had first been exhausted.16

On February 19, 2010, the RTC issued an order17denying his motion.

The denial prompted Guy to seek relief before the CA.

 The CA Ruling

On June 25, 2012, the CA rendered the assailed decision dismissing Guy’s appeal for the same reasons given
by the trial court. In addition thereto, the appellate court stated:

We hold that Michael Guy, being listed as a general partner of QSC during that time, cannot feign ignorance of
the existence of the court summons. The verified Answer filed by one of the partners, Elton Ong, binds him as
a partner because the Rules of Court does not require that summons be served on all the partners. It is
sufficient that service be made on the "president, managing partner, general manager, corporate secretary,
treasurer or in-house counsel." To Our mind, it is immaterial whether the summons to QSC was served on the
theory that it was a corporation. What is important is that the summons was served on QSC’s authorized officer
xxx.18

The CA stressed that Guy, being a partner in QSC, was bound by the summons served upon QSC based on
Article 1821 of the Civil Code. The CA further opined that the law did not require a partner to be actually
involved in a suit in order for him to be made liable. He remained “solidarily liable whether he participated or
not, whether he ratified it or not, or whether he had knowledge of the act or omission.” 19

Aggrieved, Guy filed a motion for reconsideration but it was denied by the CA in its assailed resolution, dated
March 5, 2013.

Hence, the present petition raising the following

ISSUE

THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT

PETITIONER GUY IS SOLIDARILY LIABLE WITH THE PARTNERSHIP FOR DAMAGES ARISING FROM
THE BREACH OF THE CONTRACT OF SALE WITH RESPONDENT GACOTT. 20

Guy argues that he is not solidarily liable with the partnership because the solidary liability of the partners
under Articles 1822, 1823 and 1824 of the Civil Code only applies when it stemmed from the act of a partner.
In this case, the alleged lapses were not attributable to any of the partners. Guy further invokes Article 1816 of
the Civil Code which states that the liability of the partners to the partnership is merely joint and subsidiary in
nature.

In his Comment,21 Gacott countered, among others, that because Guy was a general and managing partner of
QSC, he could not feign ignorance of the transactions undertaken by QSC. Gacott insisted that notice to one
partner must be considered as notice to the whole partnership, which included the pendency of the civil suit
against it.

In his Reply,22 Guy contended that jurisdiction over the person of the partnership was not acquired because the
summons was never served upon it or through any of its authorized office. He also reiterated that a partner’s
liability was joint and subsidiary, and not solidary.

The Court’s Ruling

The petition is meritorious.

The service of summons was flawed; voluntary appearance cured the defect

Jurisdiction over the person, or jurisdiction in personam – the power of the court to render a personal judgment
or to subject the parties in a particular action to the judgment and other rulings rendered in the action – is an
element of due process that is essential in all actions, civil as well as criminal, except in actions in rem or quasi
in rem.23Jurisdiction over the person of the plaintiff is acquired by the mere filing of the complaint in court. As
the initiating party, the plaintiff in a civil action voluntarily submits himself to the jurisdiction of the court. As to
the defendant, the court acquires jurisdiction over his person either by the proper service of the summons, or
by his voluntary appearance in the action.24

Under Section 11, Rule 14 of the 1997 Revised Rules of Civil Procedure, when the defendant is a corporation,
partnership or association organized under the laws of the Philippines with a juridical personality, the service of
summons may be made on the president, managing partner, general manager, corporate secretary, treasurer,
or in-house counsel. Jurisprudence is replete with pronouncements that such provision provides an exclusive
enumeration of the persons authorized to receive summons for juridical entities.25

The records of this case reveal that QSC was never shown to have been served with the summons through
any of the enumerated authorized persons to receive such, namely: president, managing partner, general
manager, corporate secretary, treasurer or in-house counsel. Service of summons upon persons other than
those officers enumerated in Section 11 is invalid. Even substantial compliance is not sufficient service of
summons.26 The CA was obviously mistaken when it opined that it was immaterial whether the summons to
QSC was served on the theory that it was a corporation.27

Nevertheless, while proper service of summons is necessary to vest the court jurisdiction over the defendant,
the same is merely procedural in nature and the lack of or defect in the service of summons may be cured by
the defendant’s subsequent voluntary submission to the court’s jurisdiction through his filing a responsive
pleading such as an answer. In this case, it is not disputed that QSC filed its Answer despite the defective
summons. Thus, jurisdiction over its person was acquired through voluntary appearance.

A partner must be separately and distinctly impleaded before he can be bound by a judgment

The next question posed is whether the trial court’s jurisdiction over QSC extended to the person of Guy
insofar as holding him solidarily liable with the partnership. After a thorough study of the relevant laws and
jurisprudence, the Court answers in the negative.

Although a partnership is based on delectus personae or mutual agency, whereby any partner can generally
represent the partnership in its business affairs, it is non sequitur that a suit against the partnership is
necessarily a suit impleading each and every partner. It must be remembered that a partnership is a juridical
entity that has a distinct and separate personality from the persons composing it.28

In relation to the rules of civil procedure, it is elementary that a judgment of a court is conclusive and binding
only upon the parties and their successors-in-interest after the commencement of the action in court.29 A
decision rendered on a complaint in a civil action or proceeding does not bind or prejudice a person not
impleaded therein, for no person shall be adversely affected by the outcome of a civil action or proceeding in
which he is not a party.30The principle that a person cannot be prejudiced by a ruling rendered in an action or
proceeding in which he has not been made a party conforms to the constitutional guarantee of due process of
law.31

In Muñoz v. Yabut, Jr.,32 the Court declared that a person not impleaded and given the opportunity to take part
in the proceedings was not bound by the decision declaring as null and void the title from which his title to the
property had been derived. The effect of a judgment could not be extended to non-parties by simply issuing an
alias writ of execution against them, for no man should be prejudiced by any proceeding to which he was a
stranger.

In Aguila v. Court of Appeals,33 the complainant had a cause of action against the partnership. Nevertheless, it
was the partners themselves that were impleaded in the complaint. The Court dismissed the complaint and
held that it was the partnership, not its partners, officers or agents, which should be impleaded for a cause of
action against the partnership itself. The Court added that the partners could not be held liable for the
obligations of the partnership unless it was shown that the legal fiction of a different juridical personality was
being used for fraudulent, unfair, or illegal purposes.34
Here, Guy was never made a party to the case. He did not have any participation in the entire proceeding until
his vehicle was levied upon and he suddenly became QSC’s “co-defendant debtor” during the judgment
execution stage. It is a basic principle of law that money judgments are enforceable only against the property
incontrovertibly belonging to the judgment debtor.35 Indeed, the power of the court in executing judgments
extends only to properties unquestionably belonging to the judgment debtor alone. An execution can be issued
only against a party and not against one who did not have his day in court. The duty of the sheriff is to levy the
property of the judgment debtor not that of a third person. For, as the saying goes, one man's goods shall not
be sold for another man's debts.36

In the spirit of fair play, it is a better rule that a partner must first be impleaded before he could be prejudiced by
the judgment against the partnership. As will be discussed later, a partner may raise several defenses during
the trial to avoid or mitigate his obligation to the partnership liability. Necessarily, before he could present
evidence during the trial, he must first be impleaded and informed of the case against him. It would be the
height of injustice to rob an innocent partner of his hard-earned personal belongings without giving him an
opportunity to be heard. Without any showing that Guy himself acted maliciously on behalf of the company,
causing damage or injury to the complainant, then he and his personal properties cannot be made directly and
solely accountable for the liability of QSC, the judgment debtor, because he was not a party to the case.

Further, Article 1821 of the Civil Code does not state that there is no need to implead a partner in order to
be bound by the partnership liability. It provides that:

Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner
acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of
any other partner who reasonably could and should have communicated it to the acting partner, operate as
notice to or knowledge of the partnership, except in the case of fraud on the partnership, committed by or
with the consent of that partner.

[Emphases and Underscoring Supplied]

A careful reading of the provision shows that notice to any partner, under certain circumstances, operates as
notice to or knowledge to the partnership only. Evidently, it does not provide for the reverse situation, or that
notice to the partnership is notice to the partners. Unless there is an unequivocal law which states that a
partner is automatically charged in a complaint against the partnership, the constitutional right to due process
takes precedence and a partner must first be impleaded before he can be considered as a judgment debtor. To
rule otherwise would be a dangerous precedent, harping in favor of the deprivation of property without ample
notice and hearing, which the Court certainly cannot countenance.

Partners’ liability is subsidiary and generally joint; immediate levy upon the property of a partner cannot be
made

Granting that Guy was properly impleaded in the complaint, the execution of judgment would be improper.
Article 1816 of the Civil Code governs the liability of the partners to third persons, which states that:

Article 1816. All partners, including industrial ones, shall be liable pro rata with all their property and after all
the partnership assets have been exhausted, for the contracts which may be entered into in the name and
for the account of the partnership, under its signature and by a person authorized to act for the partnership.
However, any partner may enter into a separate obligation to perform a partnership contract.

[Emphasis Supplied]

This provision clearly states that, first, the partners’ obligation with respect to the partnership liabilities is
subsidiary in nature. It provides that the partners shall only be liable with their property after all the partnership
assets have been exhausted. To say that one’s liability is subsidiary means that it merely becomes secondary
and only arises if the one primarily liable fails to sufficiently satisfy the obligation. Resort to the properties of a
partner may be made only after efforts in exhausting partnership assets have failed or that such partnership
assets are insufficient to cover the entire obligation. The subsidiary nature of the partners’ liability with the
partnership is one of the valid defenses against a premature execution of judgment directed to a partner.

In this case, had he been properly impleaded, Guy’s liability would only arise after the properties of QSC would
have been exhausted. The records, however, miserably failed to show that the partnership’s properties were
exhausted. The report37 of the sheriff showed that the latter went to the main office of the DOTC-LTO in
Quezon City and verified whether Medestomas, QSC and Guy had personal properties registered therein.
Gacott then instructed the sheriff to proceed with the attachment of one of the motor vehicles of Guy. 38 The
sheriff then served the Notice of Attachment/Levy upon Personalty to the record custodian of the DOTC-LTO of
Mandaluyong City. A similar notice was served to Guy through his housemaid at his residence.

Clearly, no genuine efforts were made to locate the properties of QSC that could have been attached to satisfy
the judgment − contrary to the clear mandate of Article 1816. Being subsidiarily liable, Guy could only be held
personally liable if properly impleaded and after all partnership assets had been exhausted.

Second, Article 1816 provides that the partners’ obligation to third persons with respect to the partnership
liability is pro rata or joint.1âwphi1 Liability is joint when a debtor is liable only for the payment of only a
proportionate part of the debt. In contrast, a solidary liability makes a debtor liable for the payment of the entire
debt. In the same vein, Article 1207 does not presume solidary liability unless: 1) the obligation expressly so
states; or 2) the law or nature requires solidarity. With regard to partnerships, ordinarily, the liability of the
partners is not solidary.39 The joint liability of the partners is a defense that can be raised by a partner
impleaded in a complaint against the partnership.

In other words, only in exceptional circumstances shall the partners’ liability be solidary in nature. Articles
1822, 1823 and 1824 of the Civil Code provide for these exceptional conditions, to wit:

Article 1822. Where, by any wrongful act or omission of any partner acting in the ordinary course of the
business of the partnership or with the authority of his co-partners, loss or injury is caused to any person, not
being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same
extent as the partner so acting or omitting to act.

Article 1823. The partnership is bound to make good the loss:

(1) Where one partner acting within the scope of his apparent authority receives money or property of a
third person and misapplies it; and

(2) Where the partnership in the course of its business receives money or property of a third person
and the money or property so received is misapplied by any partner while it is in the custody of the
partnership.

Article 1824. All partners are liable solidarily with the partnership for everything chargeable to the
partnership under Articles 1822 and 1823.

[Emphases Supplied]

In essence, these provisions articulate that it is the act of a partner which caused loss or injury to a third
person that makes all other partners solidarily liable with the partnership because of the words "any wrongful
act or omission of any partner acting in the ordinary course of the business," "one partner acting within the
scope of his apparent authority" and "misapplied by any partner while it is in the custody of the
partnership." The obligation is solidary because the law protects the third person, who in good faith relied upon
the authority of a partner, whether such authority is real or apparent.40

In the case at bench, it was not shown that Guy or the other partners did a wrongful act or misapplied the
money or property he or the partnership received from Gacott. A third person who transacted with said
partnership can hold the partners solidarily liable for the whole obligation if the case of the third person falls
under Articles 1822 or 1823.41 Gacott’s claim stemmed from the alleged defective transreceivers he bought
from QSC, through the latter's employee, Medestomas. It was for a breach of warranty in a contractual
obligation entered into in the name and for the account of QSC, not due to the acts of any of the partners. For
said reason, it is the general rule under Article 1816 that governs the joint liability of such breach, and not the
exceptions under Articles 1822 to 1824. Thus, it was improper to hold Guy solidarily liable for the obligation of
the partnership.

Finally, Section 21 of the Corporation Code,42 as invoked by the RTC, cannot be applied to sustain Guy's
liability. The said provision states that a general partner shall be liable for all debts, liabilities and damages
incurred by an ostensible corporation. It must be read, however, in conjunction with Article 1816 of the Civil
Code, which governs the liabilities of partners against third persons. Accordingly, whether QSC was an alleged
ostensible corporation or a duly registered partnership, the liability of Guy, if any, would remain to be joint and
subsidiary because, as previously stated, all partners shall be liable pro rata with all their property and after all
the partnership assets have been exhausted for the contracts which may be entered into in the name and for
the account of the partnership.

WHEREFORE, the petition is GRANTED. The June 25, 2012 Decision and the March 5, 2013 Resolution of
the Court of Appeals in CA-G.R. CV No. 94816 are hereby REVERSED and SET ASIDE. Accordingly, the
Regional Trial Court, Branch 52, Puerto Princesa City, is ORDERED TO RELEASE Michael C. Guy's Suzuki
Grand Vitara subject of the Notice of Levy/ Attachment upon Personalty.

SO ORDERED.

G.R. No. 201378

G.V. FLORIDA TRANSPORT, INC., Petitioner

vs.
TIARA COMMERCIAL CORPORATION, Respondent

DECISION

JARDELEZA, J.:

This is a petition for review on certiorari1 under Rule 45 of the Rules of Court filed by petitioner G.V. Florida
Transport Inc. (GV Florida) to challenge the Decision of the Court of Appeals (CA) in CA-G.R. SP No. 110760
dated October 13, 2011 (Decision)2 and its Resolution dated March 26, 2012 (Resolution)3 which denied GV
Florida's subsequent motion for reconsideration. The CA granted respondent Tiara Commercial Corporation's
(TCC) petition for certiorari and prohibition under Rule 65 of the Rules of Court. It found that Branch 129 of the
Regional Trial Court (RTC), Caloocan City, acted with grave abuse of discretion when it refused to grant TCC's
motion to dismiss GV Florida's third-party complaint in an action for damages pending before the RTC.

The bus company Victory Liner, Inc. (VLI) filed an action for damages4 against GV Florida and its bus driver
Arnold Vizquera (Vizquera) before the RTC. This action arose out of a vehicle collision between the buses of
VLI and GV Florida along Capirpiwan, Cordon, Isabela on May I, 2007. In its complaint, VLI claimed that
Vizquera's negligence was the proximate cause of the collision and GV Florida failed to exercise due diligence
in supervising its employee.5

In its Answer,6 GV Florida alleged that the Michelin tires of its bus had factory and mechanical defects which
caused a tire blow-out. This, it claimed, was the proximate cause of the vehicle collision.7

On April 8, 2008, GV Florida instituted a third-party complaint8 against TCC. According to GV Florida, on
March 23, 2007, it purchased from TCC fifty (50) brand new Michelin tires, four (4) of which were installed into
the bus that figured in the collision. It claimed that though Vizquera exerted all efforts humanly possible to
avoid the accident, the bus nevertheless swerved to the oncoming south-bound lane and into the VLI bus. GV
Florida maintains that the '"proximate cause of the accident is the tire blow out which was brought about by
factory and mechanical defects in the Michelin tires which third-party plaintiff GV Florida absolutely and totally
had no control over."9

The RTC ordered the service of summons on TCC. In the return of summons, it appears that the sheriff served
the summons to a certain Cherry Gino-gino (Gino-gino) who represented herself as an accounting manager
authorized by TCC to receive summons on its behalf.10

TCC filed a Special Entry of Appearance with an Ex-parte Motion for Extension of Time to File Responsive
Pleading and/or Motion to Dismiss.11 Therein, it stated that the summons was received by Gino-gino, its
financial supervisor. The RTC granted TCC's prayer for extension of time to file a responsive pleading or a
motion to dismiss.

TCC eventually filed a motion to dismiss12 GV Florida's third-party complaint. First, it argued that the RTC
never acquired jurisdiction over it due to improper service of summons. Under Section 11 of Rule 14, there is
an exclusive list of the persons upon whom service of summons on domestic juridical entities may be made. As
the summons in this case was not served on any of the persons listed in Section 11 of Rule 14, there was no
proper service of summons on TCC that would vest the RTC with jurisdiction over it. Second, TCC stated that
the purported cause of action in the third-party complaint is a claim for an implied warranty which has already
prescribed, having been made beyond the six-month period allowed in the Civil Code. Third, the third-party
complaint failed to state a cause of action against TCC. TCC harped on the fact that GV Florida did not
mention in the third-party complaint that the tires that blew out were purchased from it. Moreover, a tire blow-
out does not relieve a common carrier of its liability. Fourth, TCC argues that there is a condition precedent
which the law requires before a claim for implied warranty may be made. The party claiming must submit a
warranty claim and demand. GV Florida failed to do so in this case. Fifth, GV Florida has the burden of first
establishing that the cause of the accident was not its own negligence before it can be allowed to file a third-
party complaint against TCC. Sixth, venue was improperly laid since TCC's principal place of business is in
Makati. And finally, TCC states that the third-party complaint should be dismissed due to GV Florida's failure to
implead Michelin as an indispensable party.13

The RTC denied TCC's motion to dismiss in an Order14 dated March 2, 2009. It also denied TCC's subsequent
motion for reconsideration in an Order15 dated July 16, 2009.

On October 5, 2009, TCC filed before the CA a petition for certiorari and prohibition under Rule 65 of the Rules
of Court challenging the RTC's denial of its motion to dismiss and motion for reconsideration.

In the meantime, TCC filed its Answer Ad Cautelam 16 which repeated its arguments pertaining to jurisdiction,
the prescription of the implied warranty claim, the impropriety of the third-party complaint and the venue of the
action, and the failure to implead Michelin. Upon order of the RTC, the case was set for pre-trial17 and the
parties submitted their respective pretrial briefs. Notably, TCC filed its pre-trial brief without any reservations as
to the issue of jurisdiction. Moreover, not only did it fail to include in its identification of issues the question of
the RTC's jurisdiction, TCC even reserved the option to present additional evidence.18

On October 13, 2011, the CA rendered its Decision granting TCC's petition and reversing the Orders of the
RTC. Emphasizing that the enumeration in Section 11 of Rule 14 of the Rules of Court is exclusive, the CA
found that the RTC never acquired jurisdiction over TCC because of the improper service of summons upon a
person not named in the enumeration.19 It then proceeded to rule that GV Florida's third-party complaint
against TCC is a claim for implied warranty which, under Article 1571 of the Civil Code, must be filed within six
months from delivery. While the CA noted that the delivery receipt for the tires is not in the records of the case,
it may be assumed that the tires were delivered a few days after the purchase date of March 23, 2007. Since
GV Florida only filed the third-party complaint on April 8, 2008, the action has prescribed.20

GV Florida thus filed this petition for review on certiorari under Rule 45 of the Rules of Court seeking the
reversal of the CA's Decision.
GV Florida argues that the RTC acquired jurisdiction over TCC. While it agrees that the enumeration in Section
11 of Rule 14 of the Rules of Court is exclusive, GV Florida argues that service of summons is not the only
means through which a court acquires jurisdiction over a party. Under Section 20 of Rule 14, voluntary
appearance of a defendant is equivalent to service of summons, which then gives a court jurisdiction over such
defendant. In this case, GV Florida claims that TCC voluntarily appeared and submitted to the jurisdiction of
the RTC when it filed motions and pleadings seeking affirmative relief from said court. It adds that Section 11
of Rule 14 is only a general rule which allows for substantial compliance when there is clear proof that the
domestic juridical entity in fact received the summons. Moreover, GV Florida argues that improper service of
summons is not a ground for dismissal of the third-party complaint since the RTC has the authority to
issue alias summons.21

GV Florida also challenges the CA's ruling that its third-party complaint against TCC should be dismissed on
the ground of prescription. It claims that prescription cannot be the basis of a dismissal when the issue involves
evidentiary matters that can only be threshed out during trial. In this case, GV Florida asserts that the issue of
whether its action has prescribed requires a determination of when the Michelin tires were delivered. Thus,
there is a need to examine the delivery receipts which, as GV Florida highlights, are not in the records of the
CA as stated in the Decision itself.22

In its Comment, TCC raises the procedural defense that GV Florida's petition was filed out of time. It insists
that GV Florida's motion for extension of time to file its petition is no longer allowed by virtue of AM No. 7-7-12-
SC which prohibits the filing of motions for extension of time in petitions filed under Rule 45 and Rule 65 of the
Rules of Court.23 Further, TCC repeats its position that the RTC did not acquire jurisdiction over it due to
improper service of summons. It also disputes GV Florida's argument that it voluntarily appeared. TCC insists
that it initially filed a Special Entry of Appearance to apprise the RTC that "[TCC] is represented without
necessarily waiving any right/s of the latter."24 TCC adds that in its motion to dismiss and Answer Ad
Cautelam, it consistently raised the question of the propriety of the service of summons and the RTC's lack of
jurisdiction over it.25

Moreover, TCC insists that GV Florida's implied warranty claim has prescribed and that the latter has, in any
case, failed to comply with a condition precedent-the filing of a warranty claim or demand. TCC also insists that
GV Florida has never complained about the other Michelin tires it purchased. This, in TCC's view, belies GV
Florida's claim that the tires are defective.26

TCC also contends that GV Florida's filing of the third-party complaint is improper. It explains that the test for
ascertaining whether a third-party complaint may be filed is whether the third-party defendant may assert any
defense which the third-party plaintiff may have against the original plaintiff in the original case. However, GV
Florida's defense against VLI, which is lack of negligence, is personal to GV Florida and cannot be raised by
TCC for its own benefit. TCC also asserts that in any case, the venue of the third-party complaint is improperly
laid since TCC's principal place of business is in Makati.27

Finally, TCC claims that the third-party complaint should be dismissed for failure to implead an indispensable
party-Michelin, the manufacturer of the tires which GV Florida claims are defective.28

We GRANT the petition.

We emphasize that GV Florida's appeal came from an original special civil action for certiorari and prohibition
under Rule 65 filed before the CA. In cases such as this, the question of law presented before us is whether
the CA was correct in its ruling that the lower court acted with grave abuse of discretion amounting to lack or
excess of jurisdiction.29

In particular, the main issue we must resolve is whether the CA correctly found that the RTC's Order
dismissing GV Florida's third-party complaint is tainted with grave abuse of discretion which, in turn, merits its
reversal and the reinstitution of the third-party complaint.
 A

However, we shall first resolve the procedural issue raised by TCC pertaining to the timeliness of this petition.

Section 2 of Rule 45 of the Rules of Court governing the procedure for filing an appeal through a petition for
review on certiorari expressly allows the filing of a motion for extension of time. Under the Rules, the period to
file a petition for review on certiorari is fifteen (15) days from receipt of the judgment, resolution, or final order
appealed from. Nevertheless, on motion of the party filed before the reglementary period, this Court may grant
extension for a period not exceeding thirty (30) days. In a Resolution30 dated July 16, 2012, we granted
Florida's motion for extension of time. We thus find GV Florida's petition to be timely filed.

The central issue in this case arose from the RTC's Order dated March 2, 2009 denying TCC's motion to
dismiss GV Florida's third-party complaint. In remedial law, an order denying a motion to dismiss is classified
as an interlocutory order.31 This classification is vital because the kind of court order determines the particular
remedy that a losing party may pursue. In the case of a final order-one that finally disposes of a case-the
proper remedy is an appeal. On the other hand, when an order is merely interlocutory-one which refers to
something between the commencement and end of the suit which decides some point or matter but is not the
final decision of the whole controversy,32 -Section 1 of Rule 41 provides that an appeal cannot be had. In this
instance, a party's recourse is to file an answer, with the option to include grounds stated in the motion to
dismiss, and proceed to trial. In the event that an adverse judgment is rendered, the party can file an appeal
and raise the interlocutory order as an error.33

This general rule is subject to a narrow exception. A party may question an interlocutory order without awaiting
judgment after trial if its issuance is tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.34 In this case, the party can file a special civil action for certiorari under Rule 65.

A special civil action for certiorari is an original civil action and not an appeal. An appeal aims to correct errors
in judgment and rectify errors in the appreciation of facts and law which a lower court may have committed in
the proper exercise of its jurisdiction.35 A special civil action for certiorari, on the other hand, is used to correct
errors in jurisdiction. We have defined an error in jurisdiction as "one where the officer or tribunal acted without
or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction." 36

This distinction finds concrete significance when a party pleads before a higher court seeking the correction of
a particular order. When a party seeks an appeal of a final order, his or her petition must identify the errors in
the lower court's findings of fact and law. Meanwhile, when a party files a special civil action for certiorari, he or
she must allege the acts constituting grave abuse of discretion.

Grave abuse of discretion has a precise meaning in remedial law. It is not mere abuse of discretion but must
be grave "as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law."37 In more concrete terms, not every
error committed by a tribunal amounts to grave abuse of discretion. A misappreciation of the facts or a
misapplication of the law does not, by itself, warrant the filing of a special civil action for certiorari. There must
be a clear abuse of the authority vested in a tribunal. This abuse must be so serious and so grave that it
warrants the interference of the court to nullify or modify the challenged action and to undo the damage done. 38

In Pahila-Garrido v. Tortogo,39 we found grave abuse of discretion when a trial court judge issued a temporary
restraining order to prevent the implementation of a writ of execution for an indefinite period. There, we
declared that .the blatant violation of the Rules of Court is clearly grave abuse of discretion.40 In Belongilot v.
Cua,41 we also ruled that the Ombudsman's dismissal of a complaint for a violation of Republic Act No. 3019
was attended with grave abuse of discretion because it used irrelevant considerations and refused to properly
examine pertinent facts in arriving at its decision on the issue of probable cause.42 We held that "an
examination of the records reveal a collective pattern of action--done capriciously, whimsically and without
regard to existing rules and attendant facts."43

There are instances when litigants file a petition seeking the reversal of an interlocutory order yet their
pleadings fail to allege any grave abuse of discretion on the part of the lower tribunal. Instead, these petitions
merely identify errors of fact and law and seek their reversal. In such a case, the higher court must dismiss the
petition because it fails to allege the core requirement of a Rule 65 petition-the allegation of the presence of
grave abuse of discretion. Without this requirement, litigants can easily circumvent the rule that an interlocutory
order cannot be appealed. They will simply file a pleading denominated as a special civil action for certiorari,
but which instead raises errors in judgment and is, in truth, an appeal. An appeal and a special civil action
for certiorari are, however, not interchangeable remedies.44

In the present case, TCC's petition for certiorari did not identify the RTC's specific acts constituting grave
abuse of discretion. Rather, it imputed errors in the RTC's proper interpretation of the law. Further, the CA's
Decision makes no finding of any grave abuse of discretion on the part of the RTC. The penultimate paragraph
of the Decision, which summarizes the basis for its ruling, states:

In fine, the RTC failed to acquire jurisdiction over the person of [TCC] since the service of summons to its
Account Manager is not binding on the corporation. Furthermore, the action brought by [GV Florida] against
[TCC] is already barred by prescription having filed beyond the six-month prescriptive period. Having settled
the pivotal issues in this case, We find that it is no longer necessary to address other arguments raised by the
petitioner since those questions, if considered, would not alter the outcome of this case.45

The CA, in choosing to reverse the RTC in a special civil action for certiorari, based its decision on its
disagreement with the RTC as to the correct application of the law. This is not an error in jurisdiction but merely
an error in judgment. Instead of granting the petition and reversing the RTC, what the CA should have done
was to dismiss the petition for certiorari for failing to allege grave abuse of discretion. We further note that the
RTC Order challenged before the CA through the petition for certiorari is an interlocutory order. As there was
no showing of grave abuse of discretion, TCC's recourse is to proceed to trial and raise this error in its appeal
in the event of an adverse judgment.

II

Nevertheless, we have examined the errors raised by GV Florida in the appeal filed before us and hold that the
CA erred in its conclusions of law as well.

We agree that there was improper service of summons on TCC. We, however, apply jurisprudence and rule
that in cases of improper service of summons, courts should not automatically dismiss the complaint by reason
of lack of jurisdiction over the person of the defendant. The remedy is to issue alias summons and ensure that
it is properly served.46

Service of summons is the main mode through which a court acquires jurisdiction over the person of the
defendant in a civil case. Through it, the defendant is informed of the action against him or her and he or she is
able to adequately prepare his or her course of action. Rules governing the proper service of summons are not
mere matters of procedure. They go into a defendant's right to due process. 47 Thus, strict compliance with the
rules on service of summons is mandatory.

Section 11, Rule 14 of the Rules of Court provides the procedure for the issuance of summons to a domestic
private juridical entity. It states:

Sec. 11. Service upon domestic private juridical entity. - When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical personality, service may be made on
the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
This enumeration is exclusive. Section 11 of Rule 14 changed the old rules pertaining to the service of
summons on corporations. While the former rule allowed service on an agent of a corporation, the current rule
has provided for a list of specific persons to whom service of summons must be made.

In Nation Petroleum Gas, Incorporated v. Rizal Commercial Banking Corporation,48 we explained that the
purpose of this rule is "to insure that the summons be served on a representative so integrated with the
corporation that such person will know what to do with the legal papers served on him."49 This rule requires
strict compliance; the old doctrine that substantial compliance is sufficient no longer applies.50 In E.B. Villarosa
& Partner Co., Ltd. v. Benito,51we ruled that the liberal construction of the rules cannot be invoked as a
substitute for the plain requirements stated in Section 11 of Rule 14.52 In Mason v. Court of Appeals,53 we
definitively ruled that Villarosa settled the question of the application of the rule on substantial compliance. It
does not apply in the case of Section 11 of Rule 14. We said:

The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the
1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. In the
said case, petitioner E. B. Villarosa & Partner Co. Ltd. (hereafter Villarosa) with principal office address at l 02
Juan Luna St., Davao City and with branches at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila and
Kolambog, Lapasan, Cagayan de Oro City, entered into a sale with development agreement with private
respondent Imperial Development Corporation. As Villarosa failed to comply with its contractual obligation,
private respondent initiated a suit for breach of contract and damages at the Regional Trial Court of Makati.
Summons, together with the complaint, was served upon Villarosa through its branch manager at Kolambog,
Lapasan, Cagayan de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the ground of
improper service of summons and lack of jurisdiction. The trial court denied the motion and ruled that there
was substantial compliance with the rule, thus, it acquired jurisdiction over Villarosa. The latter questioned the
denial before us in its petition for certiorari. We decided in Villarosa's favor and declared the trial court without
jurisdiction to take cognizance of the case. We held that there was no valid service of summons on Villarosa as
service was made through a person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules
of Civil Procedure, which revised [ ] Section 13, Rule 14 of the 1964 Rules of Court. We discarded the trial
court's basis for denying the motion to dismiss, namely, private respondent's substantial compliance with the
rule on service of summons, and fully agreed with petitioner's assertions that the enumeration under the new
rule is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est
exclusio alterius. Had the Rules of Court Revision Committee intended to liberalize the rule on service of
summons, we said, it could have easily done so by clear and concise language. Absent a manifest intent to
liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil
Procedure.54 (Italics in the original.)

Service of summons, however, is not the only mode through which a court acquires jurisdiction over the person
of the defendant. Section 20 of Rule 14 of the Rules of Court states:

Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary appearance.

There is voluntary appearance when a party, without directly assailing the court's lack of jurisdiction, seeks
affirmative relief from the court.55 When a party appears before the court without qualification, he or she is
deemed to have waived his or her objection regarding lack of jurisdiction due to improper service of
summons.56 When a defendant, however, appears before the court for the specific purpose of questioning the
court's jurisdiction over him or her, this is a special appearance and does not vest the court with jurisdiction
over the person of the defendant.57Section 20 of Rule 14 of the Rules of Court provides that so long as a
defendant raises the issue of lack of jurisdiction, he or she is allowed to include other grounds of objection. In
such case, there is no voluntary appearance.

Still, improper service of summons and lack of voluntary appearance do not automatically warrant the
dismissal of the complaint.1âwphi1 In Lingner & Fisher GMBH v. Intermediate Appellate Court,58 we held:
A case should not be dismissed simply because an original summons was wrongfully served. It should be
difficult to conceive, for example, that when a defendant personally appears before a Court complaining that he
had not been validly summoned, that the case filed against him should be dismissed. An alias summons can
be actually served on said defendant.59 (Italics in the original)

We repeated this doctrine in later cases such as Tung Ho Steel Enterprises Corporation v. Ting Guan Trading
Corporation,60 Spouses Anuncacion v. Bocanegra,61 and Teh v. Court of Appeals.62

In Philippine American Life & General Insurance Company v. Breva,63 we even said that there is no grave
abuse of discretion when a trial court refuses to dismiss a complaint solely on the ground of lack of jurisdiction
over the person of the defendant because of improper service of summons.64

Thus, when there is improper service of summons and the defendant makes a special appearance to question
this, the proper and speedy remedy is for the court to issue alias summons.

In the present case, the summons was served to Gino-gino, a financial supervisor of TCC. While she is not one
of the officers enumerated in Section 11 of Rule 14, we find that TCC has voluntarily appeared before (and
submitted itself to) the RTC when it filed its pre-trial brief without any reservation as to the court's jurisdiction
over it. At no point in its pre-trial brief did TCC raise the issue of the RTC's jurisdiction over it. In fact, it even
asked the RTC that it be allowed to reserve the presentation of additional evidence through documents and
witnesses. While it is true that TCC initially filed an Answer Ad Cautelam, we rule that TCC waived any
objection raised therein as to the jurisdiction of the court when it subsequently filed its pre-trial brief without any
reservation and even prayed to be allowed to present additional evidence. This, to this Court's mind, is an
unequivocal submission to the jurisdiction of the RTC to conduct the trial.

Moreover, we apply the doctrine in Lingner & Fisher GMBI-J and hold that the mere fact of improper service of
summons does not lead to the outright dismissal of the third-party complaint. While the RTC should issue
an aliassummons to remedy the error, its refusal to dismiss GV Florida's third-party complaint on the ground of
lack of jurisdiction (over TCC due to improper service of summons) does not constitute grave abuse of
discretion.

III

We also disagree with the CA that GV Florida's third-party complaint should be dismissed on the ground of
prescription.

Prescription is a ground for the dismissal of a complaint without going to trial on the merits. Under Rule 16 of
the Rules of Court, it is raised in a motion to dismiss which is filed before the answer. It may also be raised as
an affirmative defense in the answer. At the discretion of the court, a preliminary hearing on the affirmative
defense may be conducted as if a motion to dismiss was filed.65 Nevertheless, this is only a general rule. When
the issue of prescription requires the detcn11ination of evidentiary matters, it cannot be the basis of an outright
dismissal without hearing.

In Sanchez v. Sanchez (Sanchez),66we held that the trial court erred when it dismissed an action on the ground
of prescription on the basis of the pleadings filed and without requiring any trial. The issue of prescription
in Sanchezrequired the prior determination of whether the sale subject of the case was valid, void or voidable.
This is a matter that requires the presentation of evidence since the fact of prescription is not apparent in the
pleadings. We said:

The Court has consistently held that the affirmative defense of prescription does not automatically warrant the
dismissal of a complaint under Rule 16 of the Rules of Civil Procedure. An allegation of prescription can
effectively be used in a motion to dismiss only when the complaint on its face shows that indeed the action has
already prescribed. If the issue of prescription is one involving evidentiary matters requiring a full-blown trial on
the merits, it cannot be determined in a motion to dismiss x x x.67(Citations omitted.)
Here, TCC alleges that GY Florida's third-party complaint (which it argues is essentially an action for implied
warranty) has already prescribed. The Civil Code states that this claim must be made within six months from
the time of the delivery of the thing sold. Without preempting the RTC's findings on the validity of the argument
that this is a warranty claim, a finding that the action has prescribed requires the ascertainment of the delivery
date of the tires in question. This, in turn, requires the presentation of the delivery receipts as well as their
identification and authentication. Under the Rules of Court, a party presenting a document as evidence must
first establish its due execution and authenticity as a preliminary requirement for its admissibility. 68

We find that the reckoning date from which the prescriptive period may be ascertained is not apparent from the
pleadings themselves. We agree with GY Florida's observation that the CA itself admitted in its Decision that
the delivery receipts do not appear in the records. A finding of fact as to the date of delivery can only be made
after hearing and reception of evidence. Thus, the CA erred in ruling that GV Florida's third-party complaint
should be dismissed on the ground of prescription.

We further note that the CA based its finding on the delivery date on mere presumptions. The assailed
Decision states that since Florida purchased the Michelin tires on March 23, 2007, it may be presumed that the
delivery was made in the ensuing days. Since the third-party complaint was filed only on April 8, 2008, or more
than one year from the date of purchase, it concluded that the claim on the implied warranty has
prescribed.69 Findings of fact, however, cannot be based on mere assumptions. The Rules of Court provide the
process through which factual findings are arrived at. This procedure must be followed as it is the means
chosen by law to ascertain judicial truth. Relying on probabilities, when the rules provide for a specific
procedure to ascertain facts, cannot be countenanced.

Since we cannot proceed to rule beyond the question of whether the CA correctly ruled that the RTC
committed grave abuse of discretion, this being the only question of law presented before us in this petition for
review on certiorari, we shall withhold ruling on the other issues raised by TCC in its Comment which have not
been discussed by the CA in its Decision. In any case, we find that the other matters raised by TCC in its
Comment are questions that should first be threshed out before the RTC.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated October 13, 2011 and its
Resolution dated March 26, 2012 are REVERSED. The Order dated March 2, 2009 of Branch 129 of the
Regional Trial Court of Caloocan City is REINSTATED.

SO ORDERED.