G.R. No. 170427 - David vs. Gutierrez-Fruelda

Petitioner Roberto R. David filed a petition for certiorari under Rule 65 challenging two RTC orders (dated July 15, 2005, and September 21, 2005) that declared him in default in Civil Case No. 13008.
The petition seeks to set aside these orders on the ground that the trial court committed grave abuse of discretion.

On September 17, 2004, private respondents initiated a complaint for accounting, reconveyance, and damages with a prayer for preliminary attachment.
The complaint alleged that petitioner fraudulently exceeded his special power of attorney by:

Converting agricultural lands to residential, commercial, and industrial use;
Registering some lands in his name and mortgaging others; and
Failing to remit and account for funds received from transactions, as well as absconding.

Due to petitioner’s absence from the country, proper service of summons could not be effected personally, leading the RTC to order service by publication on January 24, 2005.
With the last publication on March 19, 2005, a 60‑day period was provided for petitioner to file his Answer.
Despite this period and the subsequent filing of two motions for extension (one on July 14, 2005 and a later motion to lift the default), petitioner failed to timely file an Answer or provide sufficient backing for extension relief.

The Answer period lapsed on May 19, 2005, 60 days after the last publication;
Petitioner was given “many opportunities” to file an Answer, including his voluntary appearance through filing a motion for extension.

The RTC denied petitioner’s subsequent motion to lift the order of default in its September 21, 2005 Order, basing its decision on Section 3(b), Rule 9 of the Rules of Court.

The motion was not filed under oath;
It lacked an affidavit of merit; and
It did not allege that petitioner’s failure was due to fraud, accident, mistake, or excusable negligence.

Improperly denying the lifting of the order of default;
Ruling that petitioner had ample time to file his Answer despite issues with service by publication;
Failing to comply with the precise procedural mandates regarding extraterritorial service (i.e., Section 15 of Rule 14).

He argued that copies of the complaint and alias summons sent by registered mail evidenced procedural lapses; however, the RTC held that his voluntary appearance cured any alleged defects in service.
Moreover, petitioner merely asserted the existence of meritorious defenses without specifying evidence or articulating how his failure to file an Answer was excusable.

The petition for certiorari was further marred by the failure of the petitioner to attach a copy of his motion to lift the order of default, as required by Section 3, Rule 46 of the Rules of Court.
Such noncompliance was a significant factor in the Court’s decision to dismiss the petition.

Whether the RTC committed grave abuse of discretion in denying petitioner’s motion to lift the order of default.

Whether the alleged deficiencies in the service of summons by publication warranted setting aside the default order.
Whether petitioner’s failure to file his motion under oath, unaccompanied by an affidavit of merit and without alleging excusable negligence, justified the RTC’s rulings.
Whether petitioner’s voluntary appearance, signifying de facto service, waived any defect in process of service.

Whether the petitioner’s subsequent motions seeking extension or lifting the order, while simultaneously acknowledging the RTC’s jurisdiction, amount to a waiver of any irregularity in service.
The issue of appropriate hierarchical recourse given that the petition for certiorari is within the concurrent jurisdiction of this Court and the Court of Appeals.