Substituted Service of Summons When Temporarily Abroad
Substituted Service of Summons When Temporarily Abroad
Substituted Service of Summons When Temporarily Abroad
THIRD DIVISION
LEAH PALMA, G.R. No. 165273
Petitioner,
Present:
CORONA, J., Chairperson,
- versus - VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.
HON. DANILO P. GALVEZ, in his
capacity as PRESIDING JUDGE of
the REGIONAL TRIAL COURT OF Promulgated:
ILOILO CITY, BRANCH 24; and
PSYCHE ELENA AGUDO, March 10, 2010
Respondents.
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DECISION
PERALTA, J.:
Assailed in this petition for certiorari under Rule 65 of the Rules of Court
are the Orders dated May 7, 2004[1] and July 21, 2004[2] of the Regional Trial
Court (RTC) of IloiloCity, Branch 24, granting the motion to dismiss filed
by private respondent Psyche Elena Agudo and denying reconsideration
thereof, respectively.
On July 28, 2003, petitioner Leah Palma filed with the RTC an action for
damages against the Philippine Heart Center (PHC), Dr. Danilo Giron and
Dr. Bernadette O. Cruz, alleging that the defendants committed professional
fault, negligence and omission for having removed her right ovary against
her will, and losing the same and the tissues extracted from her during the
surgery; and that although the specimens were subsequently found,
petitioner was doubtful and uncertain that the same was hers as the label
therein pertained that of somebody else. Defendants filed their respective
Answers. Petitioner subsequently filed a Motion for Leave to Admit
Amended Complaint, praying for the inclusion of additional defendants who
were all nurses at the PHC, namely, Karla Reyes, Myra Mangaser and herein
private respondent Agudo. Thus, summons were subsequently issued to
them.
On February 17, 2004, the RTC's process server submitted his return of
summons stating that the alias summons, together with a copy of the
amended complaint and its annexes, were served upon private respondent
thru her husband Alfredo Agudo, who received and signed the same as
private respondent was out of the country.[3]
On March 1, 2004, counsel of private respondent filed a Notice of
Appearance and a Motion for Extension of Time to File Answer[4] stating
that he was just engaged by private respondent's husband as she was out of
the country and the Answer was already due.
On March 15, 2004, private respondent's counsel filed a Motion for Another
Extension of Time to File Answer,[5] and stating that while the draft answer
was already finished, the same would be sent to private respondent for her
clarification/verification before the Philippine Consulate in Ireland; thus, the
counsel prayed for another 20 days to file the Answer.
On March 30, 2004, private respondent filed a Motion to Dismiss[6] on the
ground that the RTC had not acquired jurisdiction over her as she was not
properly served with summons, since she was temporarily out of the
country; that service of summons on her should conform to Section 16, Rule
14 of the Rules of Court. Petitioner filed her Opposition[7] to the motion to
dismiss, arguing that a substituted service of summons on private
respondent's husband was valid and binding on her; that service of summons
under Section 16, Rule 14 was not exclusive and may be effected by other
modes of service, i.e., by personal or substituted service. Private respondent
filed a Comment[8] on petitioner's Opposition, and petitioner filed a
Reply[9] thereto.
On May 7, 2004, the RTC issued its assailed Order granting private
respondent's motion to dismiss. It found that while the summons was served
at private respondent's house and received by respondent's husband, such
service did not qualify as a valid service of summons on her as she was out
of the country at the time the summons was served, thus, she was not
personally served a summons; and even granting that she knew that a
complaint was filed against her, nevertheless, the court did not acquire
jurisdiction over her person as she was not validly served with summons;
that substituted service could not be resorted to since it was established that
private respondent was out of the country, thus, Section 16, Rule 14
provides for the service of summons on her by publication.
Petitioner filed a motion for reconsideration, which the RTC denied in its
Order dated July 21, 2004.
Petitioner is now before us alleging that the public respondent committed a
grave abuse of discretion amounting to lack or excess of jurisdiction when
he ruled that:
I. Substituted service of summons upon private respondent, a
defendant residing in the Philippines but temporarily outside the country is
invalid;
II. Section 16, Rule 14, of the 1997 Rules of Civil Procedure limits
the mode of service of summons upon a defendant residing in the
Philippines, but temporarily outside the country, exclusively to
extraterritorial service of summons under section 15 of the same rule;
III. In not ruling that by filing two (2) motions for extension of
time to file Answer, private respondent had voluntarily submitted herself
to the jurisdiction of respondent court, pursuant to Section 20, Rule 14 of
the 1997 Rules of Civil Procedure, hence, equivalent to having been
served with summons;
IV. The cases cited in his challenged Order of May 7, 2004
constitute stare decisis despite his own admission that the factual
landscape in those decided cases are entirely different from those in this
case.[10]
Petitioner claims that the RTC committed a grave abuse of discretion in
ruling that Section 16, Rule 14, limits the service of summons upon
the defendant-resident who is temporarily out of the country exclusively by
means of extraterritorial service, i.e., by personal service or by publication,
pursuant to Section 15 of the same Rule. Petitioner further argues that in
filing two motions for extension of time to file answer, private respondent
voluntarily submitted to the jurisdiction of the court.
In her Comment, private respondent claims that petitioner's certiorari under
Rule 65 is not the proper remedy but a petition for review under Rule 45,
since the RTC ruling cannot be considered as having been issued with grave
abuse of discretion; that the petition was not properly verified because while
the verification was dated September 15, 2004, the petition was dated
September 30, 2004. She insists that since she was out of the country at the
time the service of summons was made, such service should be governed by
Section 16, in relation to Section 15, Rule 14 of the Rules of Court; that
there was no voluntary appearance on her part when her counsel filed two
motions for extension of time to file answer, since she filed her motion to
dismiss on the ground of lack of jurisdiction within the period provided
under Section 1, Rule 16 of the Rules of Court.
In her Reply, petitioner claims that the draft of the petition and the
verification and certification against forum shopping were sent to her for her
signature earlier than the date of the finalized petition, since the petition
could not be filed without her signed verification. Petitioner avers that when
private respondent filed her two motions for extension of time to file answer,
no special appearance was made to challenge the validity of the service of
summons on her.
The parties subsequently filed their respective memoranda as required.
We have held that a dwelling, house or residence refers to the place where
the person named in the summons is living at the time when the service is
made, even though he may be temporarily out of the country at the time.[21] It
is, thus, the service of the summons intended for the defendant that must be
left with the person of suitable age and discretion residing in the house of the
defendant. Compliance with the rules regarding the service of summons is as
important as the issue of due process as that of jurisdiction.[22]
Section 7 also designates the persons with whom copies of the process may
be left. The rule presupposes that such a relation of confidence exists
between the person with whom the copy is left and the defendant and,
therefore, assumes that such person will deliver the process to defendant or
in some way give him notice thereof.[23]
In this case, the Sheriff's Return stated that private respondent was out of the
country; thus, the service of summons was made at her residence with her
husband, Alfredo P. Agudo, acknowledging receipt thereof. Alfredo was
presumably of suitable age and discretion, who was residing in that place
and, therefore, was competent to receive the summons on private
respondent's behalf.
Notably, private respondent makes no issue as to the fact that the place
where the summons was served was her residence, though she was
temporarily out of the country at that time, and that Alfredo is her husband.
In fact, in the notice of appearance and motion for extension of time to file
answer submitted by private respondent's counsel, he confirmed the Sheriff's
Return by stating that private respondent was out of the country and that his
service was engaged by respondent's husband. In his motion for another
extension of time to file answer, private respondent's counsel stated that a
draft of the answer had already been prepared, which would be submitted to
private respondent, who was in Ireland for her clarification and/or
verification before the Philippine Consulate there. These statements
establish the fact that private respondent had knowledge of the case filed
against her, and that her husband had told her about the case as Alfredo even
engaged the services of her counsel.
In addition, we agree with petitioner that the RTC had indeed acquired
jurisdiction over the person of private respondent when the latter's counsel
entered his appearance on private respondent's behalf, without qualification
and without questioning the propriety of the service of summons, and even
filed two Motions for Extension of Time to File Answer. In effect, private
respondent, through counsel, had already invoked the RTCs jurisdiction over
her person by praying that the motions for extension of time to file answer
be granted. We have held that 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.[24] When private respondent earlier invoked the
jurisdiction of the RTC to secure affirmative relief in her motions for
additional time to file answer, she voluntarily submitted to the jurisdiction of
the RTC and is thereby estopped from asserting otherwise.[25]
Considering the foregoing, we find that the RTC committed a grave abuse of
discretion amounting to excess of jurisdiction in issuing its assailed Orders.
WHEREFORE, the petition is GRANTED. The Orders dated May 7,
2004 and July 21, 2004 of the Regional Trial Court of Iloilo City, Branch
24, are hereby SET ASIDE. Private respondent is DIRECTED to file her
Answer within the reglementary period from receipt of this decision.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
RENATO C. CORONA
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
RENATO C. CORONA
Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairpersons Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
[1]
Penned by Judge Danilo P. Galvez; rollo, pp. 27-28.
[2]
Id. at 30.
[3]
Rollo, p. 144.
[4]
Id. at 146-147.
[5]
Id. at 148-149.
[6]
Id. at 150-154.
[7]
Id. at 155-158.
[8]
Id. at 159-163.
[9]
Id. at 164-168.
[10]
Id. at 8-9.
[11]
Rules of Court, Rule 65, Sec. 1.
[12]
See Jan-Dec Construction Corporation v. Court of Appeals, G.R. No. 146818, February 6, 2006, 481
SCRA 556, 565-566.
[13]
See People's Broadcasting (Bombo Radyo Phils., Inc.) v. Secretary of the Department of Labor and
Employment, G.R. No. 179652, May 8, 2009, 587 SCRA 724, 760.
[14]
Sari Sari Group of Companies, Inc. v, Piglas Kamao (Sari Sari Chapter), G.R. No. 164624, August 11,
2008, 561 SCRA 569, 579, citing Torres v. Specialized Packaging Development Corporation, 433 SCRA
455, 463 (2004).
[15]
Herrera, Vol. 1, p. 718 (2007), citing 42 Am. Jur., Sec. 42, p. 177.
[16]
Oaminal v. Castillo, 459 Phil. 542 (2003).
[17]
G.R. No. 165016, June 17, 2008, 554 SCRA 513, 522.
[18]
See Asiavest Limited v. Court of Appeals, G.R. No. 128803, September 25, 1998, 296 SCRA 539, 553
(1998).
[19]
No. L-22997, March 15, 1968, 22 SCRA 1070.
[20]
Id. at 1079-1080.
[21]
Keister v. Navarro, No. L-29067, May 31, 1977, 77 SCRA 209, 215.
[22]
Id.
[23]
Id. at 216.
[24]
HongKong and Shanghai Banking Corporation Limited v. Catalan, 483 Phil. 525 (2004); Orosa v.
Court of Appeals, 330 Phil. 67 (1996).
[25]
Id.