Rule-15.doc

1 ANAMA VS CA (Please read rule 15 sec. 4 and 5 first to appreciate the case. It has 1. lengthy discussion but interesting) FACTS: Sometime in 1973, the Petitioner, Douglas F. Anama (Anama), and the Respondent, Philippine Savings Bank (PSB), entered into a “Contract to Buy,” on installment basis, the real property owned by the latter. Anama defaulted in paying his obligations thereunder, thus, PSB rescinded the said contract and title to the property remained with the latter. Subsequently, the property was sold by PSB to the Spouses Saturnina Baria and Tomas Co (Co Spouses) who, after paying the purchase price in full, caused the registration of the same in their names. Anama filed before the Respondent Court a complaint for declaration of nullity of the deed of sale, cancellation of transfer certificate of title, and specific performance with damages against PSB, the Co Spouses, and the Register of Deeds of Metro Manila, District II. The respondent Court dismissed Anama’s complaint and upheld the validity of the sale between PSB and the Co Spouses. The Supreme Court rendered judgment denying Anama’s petition and sustaining the validity of the sale between PSB and the Co Spouses. Its decision became final and executory on July 12, 2004. Pursuant thereto, the Co Spouses moved for execution, which was granted by the Respondent Court. Aggrieved, Anama twice moved for the reconsideration of the Respondent Court’s arguing that the Co Spouses’ motion for execution is fatally defective. He averred that the Spouses’ motion was pro forma because it lacked the required affidavit of service and has a defective notice of hearing, hence, a mere scrap of paper. Court, however, denied Anama’s motion(s) for reconsideration. Dissatisfied, the petitioner questioned the RTC Order before the CA for taking judicial cognizance of the motion for execution filed by spouses Tomas Co and Saturnina Baria (Spouses Co) which was (1) not in accord with Section 4 and Section 15 of the Rules of Court because it was without a notice of hearing addressed to the parties; and (2) not in accord with Section 6, Rule 15 in conjunction with Section 13, Rule 13 of the Rules of Court because it lacks the mandatory affidavit of service. The CA rendered a decision dismissing the petition. It reasoned out, among others, that the issue on the validity of the deed of sale between respondents, Philippine Savings Bank (PSB) and the Spouses Co, had long been laid to rest considering that the January 29, 2004 Decision of this Court became final and executory on July 12, 2004. Hence, execution was already a matter of right on the part of the respondents and the RTC had the ministerial duty to issue a writ of execution enforcing a final and executory decision. Although a notice of hearing and affidavit of service in a motion are mandatory requirements, the Spouses Co’s motion for execution of a final and executory judgment could be acted upon by the RTC ex parte, and therefore, excused from the mandatory requirements of Sections 4, 5 and 6 of Rule 15 of the Rules of Court. The CA was of the view that petitioner was not denied due process because he was properly notified of the motion for execution of the Spouses Co. It stated that the act of the Spouses Co in resorting to personal delivery in serving their motion for execution did not render the motion pro forma. It refused to apply a rigid application of the rulesbecause it would result in a manifest failure of justice considering that petitioner’s position was nothing but an obvious dilatory tactic designed to prevent the final disposition of the Civil Case. Petitioner argues that the respondents failed to substantially comply with the rule on notice and hearing when they filed their motion for the issuance of a writ of execution with the RTC. He claims that the notice of hearing in the motion for execution filed by the Spouses Co was a mere scrap of paper because it was addressed to the Clerk of Court and not to the parties. Thus, the motion for execution did not contain the required proof of service to the adverse party. He adds that the Spouses Co and their counsel deliberately “misserved” the copy of their motion for execution, thus, committing fraud upon the trial court. Position of the Spouses Co Contrary to petitioner’s allegations, a copy of the motion for the issuance of a writ of execution was given to petitioner through his principal counsel, the Quasha Law Offices. At that time, the said law office had not formally withdrawn its appearance as counsel for petitioner. Spouses Co argue that what they sought to be executed was the final judgment of the RTC duly affirmed by the CA and this Court, thus, putting the issues on the merits to rest. The issuance of a writ of execution then becomes a matter of right and the court’s duty to issue the writ becomes ministerial. Position of respondent PSB PSB argues that the decision rendered by the RTC had long become final and executory as shown by the Entry of Judgment. The finality of the said decision entitles the respondents, by law, to the issuance of a writ of execution. PSB laments that petitioner relies more on technicalities to frustrate the ends of justice and to delay the enforcement of a final and executory decision. As to the principal issue, PSB points out that the notice of hearing appended to the motion for execution filed by the Spouses Co substantially complied with the requirements of the Rules since petitioner’s then counsel of record was duly notified and furnished a copy of the questioned motion for execution. Also, the motion for execution filed by the Spouses Co was served upon and personally received by said counsel. 1. 2.

ISSUE: WON the writ of execution needs to have notice and hearing. WON 3-day notice rule is absolute. SC RULING:

No, the writ of execution need not have notice and hearing. (It’s a lengthy discussion but very interesting.) The Court finds no compelling reason to stay the execution of the judgment because the Spouses Co complied with the notice and hearing requirements under Sections 4, 5 and 6 of Rule 15. Said sections, as amended, provide: SECTION 4. Hearing of motion. – Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. SECTION 6. Proof of service necessary. – No written motion set for hearing shall be acted upon by the court without proof of service thereof. Elementary is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. The Court has consistently held that a motion that fails to comply with the above requirements is considered a worthless piece of paper which should not be acted upon. The rule, however, is not absolute. There are motions that can be acted upon by the court ex parte if these would not cause prejudice to the other party. They are not strictly covered by the rigid requirement of the rules on notice and hearing of motions. The motion for execution of the Spouses Co is such kind of motion. It cannot be denied that the judgment sought to be executed in this case had already become final and executory. As such, the Spouses Co have every right to the issuance of a writ of execution and the RTC has the ministerial duty to enforce the same. This right on the part of the Spouses Co and duty on the part of the RTC are based on Section 1 and Section 2 of Rule 39 of the 1997 Revised Rules of Civil Procedure provides, as follows: Section 1. Execution upon judgments or final orders. – Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. The Spouses Co can have their motion for execution executed as a matter of right without the needed notice and hearing requirement to petitioner. It is evident that Section 1 of Rule 39 of the Revised Rules of Court does not prescribe that a copy of the motion for the execution of a final and executory judgment be served on the defeated party, like litigated motions such as a motion to dismiss (Section 3, Rule 16), or motion for new trial (Section 2, Rule 37), or a motion for execution of judgment pending appeal (Section 2, Rule 39), in all of which instances a written notice thereof is required to be served by the movant on the adverse party in order to afford the latter an opportunity to resist the application. It is not disputed that the judgment sought to be executed in the case at bar had already become final and executory. It is fundamental that the prevailing party in a litigation may, at any time within five (5) years after the entry thereof, have a writ of execution issued for its enforcement and the court not only has the power and authority to order its execution but it is its ministerial duty to do so. It has also been held that the court cannot refuse to issue a writ of execution upon a final and executory judgment, or quash it, or order its stay, for, as a general rule, the parties will not be allowed, after final judgment, to object to the execution by raising new issues of fact or of law, except when there had been a change in the situation of the parties which makes such execution inequitable or when it appears that the controversy has ever been submitted to the judgment of the court; or when it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that judgment debt has been paid or otherwise satisfied; or when the writ has been issued without authority. Defendant-appellant has not shown that she falls in any of the situations afore-mentioned. Ordinarily, an order of execution of a final judgment is not appealable. Otherwise, as was said by this Court in Molina v. de la Riva, a case could never end. Once a court renders a final judgment, all the issues between or among the parties before it are deemed resolved and its judicial function as regards any matter related to the controversy litigated comes to an end. The execution of its judgment is purely a ministerial phase of adjudication. The nature of its duty to see to it that the claim of the prevailing party is fully satisfied from the properties of the loser is generally ministerial. Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the judgment debtor need not be given advance notice of the application for execution . Absence of such advance notice to the judgment debtor does not constitute an infringement of the constitutional guarantee of due process. The failure to serve a copy of the motion for execution on petitioner is not a fatal defect. In fact, there was no necessity for such service. At any rate, it is not true that the petitioner was not notified of the motion for execution of the Spouses Co. The records clearly show that the motion for execution

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was duly served upon, and received by, petitioner’s counsel-of-record, the Quasha Ancheta Pena Nolasco Law Offices, as evidenced by a “signed stamped received mark” appearing on said pleading. [7] The records are bereft of proof showing any written denial from petitioner’s counsel of its valid receipt on behalf of its client. Neither is there proof that the Quasha Ancheta Pena Nolasco Law Offices has formally withdrawn its  appearance as petitioner’s counsel-of-record. Considering that there is enough proof shown on record of personal delivery in serving the subject motion for execution, there was a valid compliance with the Rules, thus, no persuasive reason to stay the execution of the subject final and executory judgment. He did not dispute the ruling of the CA  either that the alleged defect in the Spouses Co’s motion was cured when his new counsel was served a copy of said motion for reconsideration of the RTC’s order.  No, the three-day notice rule is not absolute. A liberal construction of the procedural rules is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally construed  in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice.  In Somera Vda. De Navarro v. Navarro, the Court held that there was substantial compliance of the rule on notice of motions even if the first notice was irregular because no prejudice was caused the adverse party since the motion was not considered and resolved until after several postponements of which the parties were duly notified.  Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite the lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance with the requirements of due process where the adverse party actually had the opportunity to be heard and had filed pleadings in opposition to the motion. This Court has indeed held time and again, that under Sections 4 and 5 of  Rule 15 of the Rules of Court, mandatory is the requirement in a motion, which is rendered defective by failure to comply with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading. As an integral component of the procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution of the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard. The test is the presence of opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the  grounds upon which it is based. We have consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper, which the Clerk of Court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. However, there are exceptions to the strict application of this rule. These exceptions are: (1) where a rigid  application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely  to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. A notice of hearing is an integral component of procedural due process to afford the adverse parties a chance to be heard before a motion is resolved by  the court. Through such notice, the adverse party is given time to study and answer the arguments in the motion. Records show that while Angeles’s Motion for Issuance of Writ of Execution contained a notice of hearing, it did not particularly state the date and time of the hearing. However, we still find that  petitioner was not denied procedural due process. Upon receiving the Motion for Issuance of Writ of Execution, the trial court issued an Order dated September 9, 2002 giving petitioner ten (10) days to file its comment. The trial court ruled on the motion only after the reglementary period to file comment lapsed. Clearly, petitioner was given time to study and comment  on the motion for which reason, the very purpose of a notice of hearing had been achieved. The notice requirement is not a ritual to be followed blindly. Procedural due process is not based solely on a mechanical and literal application that renders  any deviation inexorably fatal. Instead, procedural rules are liberally construed to promote their objective and to assist in obtaining a just, speedy and inexpensive determination of any action and proceeding. Once a judgment becomes final and executory, all the issues between the parties are deemed resolved and laid to rest. All that remains is the execution of the decision which is a matter of right. The prevailing party is entitled to a writ of execution, the issuance of which is the trial court’s ministerial duty. Petitioner mainly relies on mere technicalities to frustrate the ends of justice and further delay the execution process and enforcement of the RTC Decision. The case has been  dragging on for almost 30 years since petitioner filed an action for annulment of sale in 1982.

ANAMA vs. Phil. Savings Bank FACTS: Sometime in 1973, Douglas F. Anama and Philippine Savings Bank (PSB), entered into a “Contract to Buy,” on installment basis, the real property owned by the latter. However, Anama defaulted in paying his obligations thereunder, thus, PSB rescinded the said contract and title to the property remained with the latter. Subsequently, the property was sold by PSB to the Spouses Saturnina Baria and Tomas Co (Co Spouses) who, after paying the purchase price in full, caused the registration of the same in their names and were, thus, issued TCT. Anama filed before the Respondent Court a complaint for declaration of nullity of the deed of sale, cancellation of transfer certificate of title, and specific performance with damages against PSB, the Co Spouses, and the Register of Deeds of Metro Manila. The Respondent Court dismissed Anama’s complaint and upheld the validity of the sale between PSB and the Co Spouses. Undaunted, Anama appealed, at first, to this Court, and after failing to obtain a favorable decision, to the Supreme Court. The Supreme Court rendered judgment denying Anama’s petition and sustaining the validity of the sale between PSB and the Co Spouses. Its decision became final and executory on July 12, 2004. Pursuant thereto, the Co Spouses moved for execution, which was granted by the Respondent Court per its Order, dated November 25, 2005. Anama twice moved for the reconsideration of the Respondent Court’s November 25, 2005 Order arguing that the Co Spouses’ motion for execution is fatally defective. He averred that the Spouses’ motion was pro forma because it lacked the required affidavit of service and has a defective notice of hearing, hence, a mere scrap of paper. The Respondent Court, however, denied Anama’s motion(s) for reconsideration. ISSUES: 1. Whether or not the requisite notice of hearing that it should be addressed to the parties and not to the clerk of court is being complied. 2. Whether or not the requisite affidavit of service that it should be in the proper form as prescribed in the rules and it should be attached to the motion is being complied. RULING: Some issues in the case (that petitioner’s allegations on the “dagdag-bawas operation of the Transcript of Stenographic Notes,” the “fraud perpetuated upon the Court by said spouses and their lead counsel,” the “ownership,” and “falsification”) had long been laid to rest in the case of “Douglas F. Anama v. Philippine Savings Bank, et. al.” [4] For said reason, the Court cannot review those final pronouncements. To do so would violate the rules as it would open a final judgment to another reconsideration which is a prohibited procedure. On the subject procedural question, the Court finds no compelling reason to stay the execution of the judgment because the Spouses Co complied with the notice and hearing requirements under Sections 4, 5 and 6 of Rule 15 Elementary is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. The Court has consistently held that a motion that fails to comply with the above requirements is considered a worthless piece of paper which should not be acted upon. The rule, however, is not absolute. There are motions that can be acted upon by the court ex parte if these would not cause prejudice to the other party. They are not strictly covered by the rigid requirement of the rules on notice and hearing of motions. The motion for execution of the Spouses Co is such kind of motion. It cannot be denied that the judgment sought to be executed in this case had already become final and executory. The Spouses Co have every right to the issuance of a writ of execution and the RTC has the ministerial duty to enforce the same. Under Paragraph 1 of Section 1 of Rule 39 of the 1997 Revised Rules of Civil Procedure, the Spouses Co can have their motion for execution executed as a matter of right without the needed notice and hearing requirement to petitioner. In Pamintuan v. Muñoz, We ruled that once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the judgment debtor need not be given advance notice of the application for execution. At any rate, it is not true that the petitioner was not notified of the motion for execution of the Spouses Co. The records clearly show that the motion for execution was duly served upon, and received by, petitioner’s counsel-of-record, the Quasha Ancheta Pena Nolasco Law Offices, as evidenced by a “signed stamped received mark” appearing on said pleading Under Sec. 4 “Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice”.

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The three-day notice rule is not absolute. A liberal construction of the procedural rules is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice.

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Anent the second issue, we have consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper, which the Clerk of Court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. However, there are exceptions to the strict application of this rule. These exceptions are: (1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.

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However, we still find that petitioner was not denied procedural due process. Upon receiving the Motion for Issuance of Writ of Execution, the trial court issued an Order dated September 9, 2002giving petitioner ten (10) days to file its comment. The trial court ruled on the motion only after the reglementary period to file comment lapsed. Clearly, petitioner was given time to study and comment on the motion for which reason, the very purpose of a notice of hearing had been achieved.

TAN VS. CA Petitioner Annie Tan, doing business under the name and style “AJ & T Trading,” leased a portion of the ground floor of her building, more specifically described as Stall No. 623, Carvajal Street, Binondo, Manila, in favor of Bloomberry Export Manufacturing, Inc. The lease was for a period of five years starting on February 17, 1995 and ending on February 17, 2000, at a monthly rental of P20,000 for the first three years. For several alleged violations of the lease contract, petitioners filed against private respondent a complaint for ejectment, docketed as Civil Case No. 148798-CV. As its rental payment was refused by petitioner, private respondent instituted on July 13, 1995 a case for consignation, docketed as Civil Case No. 148814-CV. The two cases were consolidated. In due course, the Metropolitan Trial Court (MTC) of Manila, Branch I, rendered on February 1, 1996 a Decision which disposed as follows: “WHEREFORE, in Civil Case No. 148798-CV for [b]reach of [c]ontract, failure to pay rentals on time, encroachment on the adjacent premises without the consent of [petitioner], [she] failed to substantiate her case with that degree of proof required by law. For this reason, except for the costs of suit, this Court hereby orders the dismissal of the complaint of [petitioner]. The counterclaim and damages sought by [private respondent are] likewise ordered dismissed. The case for consignation in Civil Case No. 148814-CV has become moot and academic for failure of [petitioner] to appeal the decision of the Metropolitan [Trial] Court, Branch 15, Manila, allowing the [private respondent] to consign rental payments to the Court of Manila. Besides, the [c]omplaint for consignation being in conformity with law, [private respondent] is allowed to continue consigning with this Court all rentals that [may be] due.” On appeal, the Regional Trial Court (RTC) of Manila, Branch 2, in its Decision dated July 18, 1996, affirmed the aforementioned MTC Decision thus: “WHEREFORE, finding no cogent reasons to disturb the joint decision dated February 1, 1996 of the Metropolitan Trial Court of Manila, Branch 1, the Court sustains and affirms in toto the said decision.” Respondent Court related the incidents that ensued, as follows: “xxx [F]rom the Decision of the [RTC] dated July 18, 1996, [petitioner] filed a Motion for Reconsideration of the aforesaid decision. The Motion for Reconsideration did not contain any notice of hearing as required under Section 5, Rule 15 of the Revised Rules of Court. ISSUE: “Whether xxx the omission [through] inadvertence of a notice of hearing of a motion for reconsideration filed with the trial court xxx is a fatal defect which did not stop the running of the period to appeal[,] thus rendering the assailed decision final [and] executor RULING: Petitioner admits the categorical and mandatory character of the directives in Sections 4 and 5 of Rule 15 of the Rules of Court, which read: “SEC. 4. Hearing of motion.—Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. “Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.(4a)

“SEC. 5. Notice of hearing.—The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.(5a)” In De la Peña v. De la Peña, the Court presented a resume of earlier decisions regarding the necessity of the notice of hearing in motions for reconsideration: “In Pojas v. Gozo-Dadole, we had occasion to rule on the issue of whether a motion for reconsideration without any notice of hearing tolls the running of the prescriptive period. In Pojas, petitioner received copy of the decision in Civil Case No. 3430 of the Regional Trial Court of Tagbilaran on 15 April 1986. The decision being adverse to him petitioner filed a motion for reconsideration. For failing to mention the date when the motion was to be resolved as required in Sec. 5, Rule 15, of the Rules of Court, the motion for reconsideration was denied. A second motion for reconsideration met the same fate. On 2 July 1986 petitioner filed a notice of appeal but the same was denied for being filed out of time as ‘the motion for reconsideration which the Court ruled as pro forma did not stop the running of the 15-day period to appeal.’ “In resolving the issue of whether there was grave abuse of discretion in denying petitioner’s notice of appeal, this Court ruled— ‘Section 4 of Rule 15 of the Rules of Court requires that notice of motion be served by the movant on all parties concerned at least three (3) days before its hearing. Section 5 of the same Rule provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. A motion which does not meet the requirements of Section 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon. Service of copy of a motion containing notice of the time and place of hearing of said motion is a mandatory requirement and the failure of the movant to comply with said requirements renders his motion fatally defective.’ “In New Japan Motors, Inc. v. Perucho, defendant filed a motion for reconsideration which did not contain any notice of hearing. In a petition for certiorari, we affirmed the lower court in ruling that a motion for reconsideration that did not contain a notice of hearing was a useless scrap of paper. We held further— ‘Under Sections 4 and 5 of Rule 15 of the Rules of Court, xxx a motion is required to be accompanied by a notice of hearing which must be served by the applicant on all parties concerned at least three (3) days before the hearing thereof. Section 6 of the same rule commands that “(n)o motion shall be acted upon by the Court, without proof of service of the notice thereof xxx.” It is therefore patent that the motion for reconsideration in question is fatally defective for it did not contain any notice of hearing. We have already consistently held in a number of cases that the requirements of Sections 4, 5 and 6 of Rules 15 of the Rules of Court are mandatory and that failure to comply with the same is fatal to movant’s cause. “In Sembrano v. Ramirez,[we declared that— ‘(A) motion without notice of hearing is a mere scrap of paper. It does not toll the running of the period of appeal. This requirement of notice of hearing equally applies to a motion for reconsideration. Without such notice, the motion is pro forma. And a pro forma motion for reconsideration does not suspend the running of the period to appeal.’

TUNG HO STEEL V. TING GUAN, G.R. NO. 182153, APRIL 7, 2014 Tung Ho is a foreign corporation organized under the laws of Taiwan, Republic of China.4 On the other hand, respondent Ting Guan Trading Corp. (Ting Guan) is a domestic corporation organized under the laws of the Philippines.5 On January 9, 2002, Ting Guan obligated itself under a contract of sale to deliver heavy metal scrap iron and steel to Tung Ho. Subsequently, Tung Ho filed a request for arbitration before the ICC International Court of Arbitration (ICC) in Singapore after Ting Guan failed to deliver the full quantity of the promised heavy metal scrap iron and steel.6 The ICC ruled in favor of Tung Ho on June 18, 2004 and ordered Ting Guan to pay Tung Ho the following: (1) actual damages in the amount of US$ 659,646.15 with interest of 6% per annum from December 4, 2002 until final payment; (2) cost of arbitration in the amount of US $ 47,000.00; and (3) legal costs and expenses in the amount of NT $ 761,448.00 and US $ 34,552.83.7 On October 24, 2004, Tung Ho filed an action against Ting Guan for the recognition and enforcement of the arbitral award before the Regional Trial Court (RTC) of Makati, Branch 145. Ting Guan moved to dismiss the case based on Tung Ho’s lack of capacity to sue and for prematurity. Ting Guan subsequently filed a supplemental motion to dismiss based on improper venue. Ting Guan argued that the complaint should have been filed in Cebu where its principal place of business was located. The RTC denied Ting Guan’s motion to dismiss in an order dated May 11, 2005. Ting Guan moved to reconsider the order and raised the RTC’s alleged lack of jurisdiction over its person as additional ground for the dismissal of the complaint. Ting Guan insisted that Ms. Fe Tejero, on whom personal service was served, was not its corporate secretary and was not a person allowed under Section 11, Rule 14 of the Rules of Court to receive a summons. It also asserted that Tung Ho cannot enforce the award in the Philippines without violating public policy as Taiwan is not a signatory to the New York Convention. Ting Guan responded to the denials by filing a petition for certiorari before the CA with an application for the issuance of a temporary restraining order and a writ of preliminary injunction. Ting Guan immediately proceeded to file a petition for review on certiorari before this Court to question the CA’s rulings as discussed below. In the interim (on February 11, 2008), Tung Ho (whose motion for reconsideration of the CA decision was still pending with that court) filed a "Motion to Supplement and Resolve Motion for Reconsideration" before the CA. In this motion, Tung Ho prayed for the issuance of an alias summons if the service of summons had indeed been defective, but its motion proved unsuccessful. ISSUE: Whether Ting Guan made a voluntary appearance before the trial court. HELD: we cannot agree with the legal conclusion that the appellate court reached, given the established facts.23 To our mind, Ting Guan voluntarily appeared before the trial court in view of the procedural recourse that it took before that court. Its voluntary appearance is equivalent to service of summons.

4 In this respect, Section 1, Rule 16 of the Rules of Court requires the defendant to file a motion to dismiss within the time for, but before filing the answer to the complaint or pleading asserting a claim. Section 1, Rule 11 of the Rules of Court, on the other hand, commands the defendant to file his answer within fifteen (15) days after service of summons, unless a different period is fixed by the trial court. Once the trial court denies the motion, the defendant should file his answer within the balance of fifteen (15) days to which he was entitled at the time of serving his motion, but the remaining period cannot be less than five (5) days computed from his receipt of the notice of the denial.26 Instead of filing an answer, the defendant may opt to file a motion for reconsideration. Only after the trial court shall have denied the motion for reconsideration does the defendant become bound to file his answer.27 If the defendant fails to file an answer within the reglementary period, the plaintiff may file a motion to declare the defendant in default. This motion shall be with notice to the defendant and shall be supported by proof of the failure.28 The trial court’s denial of the motion to dismiss is not a license for the defendant to file a Rule 65 petition before the CA. An order denying a motion to dismiss cannot be the subject of a petition for certiorari as the defendant still has an adequate remedy before the trial court – i.e., to file an answer and to subsequently appeal the case if he loses the case.29 As exceptions, the defendant may avail of a petition for certiorari if the ground raised in the motion to dismiss is lack of jurisdiction over the person of the defendant30 or over the subject matter.31 We cannot allow and simply passively look at Ting Guan’s blatant disregard of the rules of procedure in the present case. The Rules of Court only allows the filing of a motion to dismiss once.32 Ting Guan’s filing of successive motions to dismiss, under the guise of "supplemental motion to dismiss" or "motion for reconsideration", is not only improper but also dilatory.33 Ting Guan’s belated reliance on the improper service of summons was a mere afterthought, if not a bad faith ploy to avoid the foreign arbitral award’s enforcement which is still at its preliminary stage after the lapse of almost a decade since the filing of the complaint. Furthermore, Ting Guan’s failure to raise the alleged lack of jurisdiction over its person in the first motion to dismiss is fatal to its cause. Ting Guan voluntarily appeared before the RTC when it filed a motion to dismiss and a "supplemental motion to dismiss" without raising the RTC’s lack of jurisdiction over its person. In Anunciacion v. Bocanegra,34 we categorically stated that the defendant should raise the affirmative defense of lack of jurisdiction over his person in the very first motion to dismiss. Failure to raise the issue of improper service of summons in the first motion to dismiss is a waiver of this defense and cannot be belatedly raised in succeeding motions and pleadings. As a final note, we are not unaware that the present case has been complicated by its unique development. The complication arose when the CA, instead of resolving the parties’ separate partial motions for reconsideration in one resolution, proceeded to first resolve and to deny Ting Guan’s partial motion. Ting Guan, therefore, went to this Court via a petition for review on certiorari while Tung Ho’s partial motion for reconsideration was still unresolved. Expectedly, Ting Guan did not question the portions of the CA decision favorable to it when it filed its petition with this Court. Instead, Ting Guan reiterated that the CA should have included additional grounds to justify the dismissal of Tung Ho’s complaint with the RTC. The Court denied Ting Guan’s petition, leading to the entry of judgment that improvidently followed. Later, the CA denied Tung Ho’s partial motion for reconsideration, prompting Tung Ho’s own petition with this Court, which is the present G.R. No. 182153. Under the Rules of Court, entry of judgment may only be made if no appeal or motion for reconsideration was timely filed.36 In the proceedings before the CA, if a motion for reconsideration (including a partial motion for reconsideration37) is timely filed by the proper party, execution of the CA’s judgment or final resolution shall be stayed.38 This rule is applicable even to proceedings before the Supreme Court, as provided in Section 4, Rule 56 of the Rules of Court.39 In the present case, Tung Ho timely filed its motion for reconsideration with the CA and seasonably appealed the CA’s rulings with the Court through the present petition (G.R. No. 182153). To now recognize the finality of the Resolution of Ting Guan petition (G.R. No. 176110) based on its entry of judgment and to allow it to foreclose the present meritorious petition of Tung Ho, would of course cause unfair and unjustified injury to Tung Ho. First, as previously mentioned, the Ting Guan petition did not question or assail the full merits of the CA decision. It was Tung Ho, the party aggrieved by the CA decision, who substantially questioned the merits of the CA decision in its petition; this petition showed that the CA indeed committed error and Tung Ho’s complaint before the RTC should properly proceed. Second, the present case is for the enforcement of an arbitral award involving millions of pesos. Tung Ho already won in the foreign arbitration and the present case is simply for the enforcement of this arbitral award in our jurisdiction. Third, and most importantly, Tung Ho properly and timely availed of the remedies available to it under the Rules of Court, which provide that filing and pendency of a motion for reconsideration stays the execution of the CA judgment. Therefore, at the time of the entry of judgment in G.R. No. 176110 in the Supreme Court on January 8, 2008, the CA decision which the Court affirmed was effectively not yet be final. Significantly, the rule that a timely motion for reconsideration stays the execution of the assailed judgment is in accordance with Rule 51, Section 10 (Rules governing the CA proceedings) which provides that "entry of judgments may only be had if there is no appeal or motion for reconsideration timely filed. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry." Incidentally, this procedure also governs before Supreme Court proceedings.40 Following these rules, therefore, the pendency of Tung Ho’s MR with the CA made the entry of the judgment of the Court in the Ting Guan petition premature and inefficacious for not being final and executory. Based on the above considerations, the Court would not be in error if it applies its ruling in the case of Realty Sales Enterprises, Inc. and Macondray Farms, Inc. v. Intermediate Appellate Court, et al.41 where the Court, in a per curiam resolution, ruled that an entry of judgment may be recalled or lifted motu proprio when it is clear that the decision assailed of has not yet become final under the rules:

The March 6, 1985 resolution denying reconsideration of the January 30, 1985 resolution was, to repeat, not served on the petitioners until March 20, 1985 - and therefore the Jan. 30, 1985 resolution could not be deemed final and executory until one (1) full day (March 21) had elapsed, or on March 22, 1985 (assuming inaction on petitioners' part.) The entry of judgment relative to the January 30, 1985 resolution, made on March 18, 1985, was therefore premature and inefficacious. An entry of judgment does not make the judgment so entered final and execution when it is not so in truth. An entry of judgment merely records the fact that a judgment, order or resolution has become final and executory; but it is not the operative act that make the judgment, order or resolution final and executory. In the case at bar, the entry of judgment on March 18, 1985 did not make the January 30, 1985 resolution subject of the entry, final and executory, As of the date of entry, March 18, 1985, notice of the resolution denying reconsideration of the January 30, 1985 resolution had not yet been served on the petitioners or any of the parties, since March 18, 1985 was also the date of the notice (and release) of the March 6, 1985 resolution denying reconsideration.1âwphi1 According to this ruling, the motu proprio recall or setting aside of the entry of final judgment was proper and "entirely consistent with the inherent power of every court inter alia to amend and control its process and orders so as to make them conformable to law and justice [Sec. 5(g), Rule 135, Rules of Court,]. That the recall has in fact served to achieve a verdict consistent with law and justice is clear from the judgment subsequently rendered on the merits." This course of action is effectively what the Court undertook today, adapted of course to the circumstances of the present case.