G.R. No. 170427 , January 30, 2009.
ROBERTO R. DAVID, Petitioner, vs. JUDGE CARMELITA S. GUTIERREZ-FRUELDA, Honorable Presiding Judge, Branch 43, Regional Trial Court of San Fernando, Pampanga, VICENTE L. PANLILIO, ROBERTO L. PANLILIO, REMEDIOS P. PAPA, ADELWISA P. FERNANDEZ, and LOURDES D. PANLILIO, REPRESENTED BY THEIR ATTORNEY-IN-FACT AND ON BEHALF OF HIMSELF, VICENTE L. PANLILIO, and THE REGISTER OF DEEDS OF PAMPANGA, Respondents.

FACTS

On September 17, 2004, private respondents filed a complaint for accounting, reconveyance, and damages with a prayer for preliminary attachment against petitioner Roberto R. David, his wife, and the Register of Deeds of Pampanga. They alleged that petitioner fraudulently exceeded his special power of attorney by registering some of their agricultural lands in his name, mortgaging others, and failing to account for and remit money from transactions. Service of summons failed as petitioner was abroad. On January 24, 2005, the Regional Trial Court (RTC) ordered service by publication. Private respondents later moved to declare petitioner in default for failing to file an Answer within 60 days from the last publication on March 19, 2005. On July 14, 2005, petitioner filed a motion for a 15-day extension to file an Answer, with an opposition to the motion to declare him in default. The RTC, in its Order dated July 15, 2005, declared petitioner in default, noting the Answer period lapsed on May 19, 2005, and denied his motion for extension. Petitioner then filed a motion to lift the order of default and sought another extension. The RTC denied this motion in its September 21, 2005 Order, ruling it was fatally flawed for not being under oath, lacking an affidavit of merit, and failing to allege that the failure to answer was due to fraud, accident, mistake, or excusable negligence as required by Section 3(b), Rule 9 of the Rules of Court. Petitioner filed a petition for certiorari directly with the Supreme Court.

ISSUE

Did the Regional Trial Court commit grave abuse of discretion in denying petitioner’s motion to lift the order of default?

RULING

No, the Regional Trial Court did not commit grave abuse of discretion. The Supreme Court affirmed the RTC’s Orders. Petitioner’s voluntary appearance before the RTC by filing motions for extension to file an Answer cured any alleged defect in the service of summons by publication. On the issue of default, the Court held that while default orders are disfavored, petitioner failed to comply with the mandatory requirements of Section 3(b), Rule 9 of the Rules of Court for setting aside an order of default. His motion to lift the order was not under oath, contained no allegation that his failure to answer was due to fraud, accident, mistake, or excusable negligence, and his claim of having a meritorious defense was unsubstantiated and unaccompanied by an affidavit of merit. Furthermore, the Supreme Court noted procedural lapses in the petition, including the failure to attach a copy of the motion to lift the order of default as required and the improper direct filing with the Supreme Court instead of following the hierarchy of courts. The petition was dismissed for lack of merit.