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LEAH Petitioner, - versus - HON. DANILO P. GALVEZ, in his capacity
as PRESIDING JUDGE of the REGIONAL TRIAL COURT OF ILOILO CITY, BRANCH 24; and
PSYCHE ELENA AGUDO,
Respondents. |
G.R. No.
165273 Present: VELASCO,
JR., NACHURA, PERALTA,
and MENDOZA,
JJ. Promulgated: March 10, 2010 |
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PERALTA, J.:
Assailed
in this petition for certiorari under Rule 65 of the Rules of Court are
the Orders dated
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
On
On
On
On
Petitioner
filed a motion for reconsideration, which the RTC denied in its Order dated
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
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
shall first resolve the procedural issues raised by private respondent.
Private respondent's claim that the petition for certiorari
under Rule 65 is a wrong remedy thus the petition should be dismissed, is
not persuasive. A petition for certiorari
is proper when any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction and
there is no appeal, or any plain, speedy, and adequate remedy at law.[11]
There is “grave abuse of discretion” when public respondent acts in a
capricious or whimsical manner in the exercise of its judgment as to be
equivalent to lack of jurisdiction.
Section 1,
Rule 41 of the 1997 Rules of Civil Procedure states that an appeal may be taken
only from a final order that completely disposes of
the case; that no appeal may be taken from (a)
an order denying a motion for new trial or reconsideration; (b) an order
denying a petition for relief or any similar motion seeking relief from
judgment; (c) an interlocutory order; (d) an order disallowing or dismissing an
appeal; (e) an order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or any
other ground vitiating consent; (f) an order of execution; (g) a judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third-party complaints,
while the main case is pending, unless the court allows an appeal therefrom;
or (h) an order dismissing an action without prejudice. In all the above instances where the judgment
or final order is not appealable, the aggrieved party may file an appropriate
special civil action for certiorari
under Rule 65.
In this case, the RTC Order granting the motion to dismiss filed by
private respondent is a final order because it terminates the proceedings
against her, but it falls within exception (g) of the
Rule since the case involves several defendants, and the complaint for damages
against these defendants is still pending.[12]
Since there is no appeal, or any plain,
speedy, and adequate remedy in law, the remedy of a special civil action for certiorari is proper as there is a need
to promptly relieve the aggrieved party from the injurious effects of the acts
of an inferior court or tribunal.[13]
Anent private respondent's allegation that the petition was
not properly verified, we find the same to be devoid of merit. The purpose
of requiring a verification is to secure an assurance that the allegations of
the petition have been made in good faith, or are true and correct, not merely
speculative.[14] In this instance, petitioner attached a
verification to her petition although dated earlier than the filing of her
petition. Petitioner explains that since a draft of the petition and the
verification were earlier sent to her in
Now on the merits, the issue for
resolution is whether there was a valid service of summons on private
respondent.
In civil cases, the trial court
acquires jurisdiction over the person of the defendant either by the service of
summons or by the latter’s voluntary appearance and submission to the authority
of the former.[16] Private respondent was a Filipino resident
who was temporarily out of the
Sec.
16. Residents temporarily out of the Philippines. – When an action is
commenced against a defendant who ordinarily resides within the
The preceding section referred to
in the above provision is Section 15, which speaks of extraterritorial service,
thus:
SEC. 15. Extraterritorial service.
─ When the defendant does not reside and is
not found in the Philippines, and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may, by leave of
court, be effected out of the Philippines by personal service as under section
6; or by publication in a newspaper of general circulation in such places and
for such time as the court may order, in which case a copy of the summons and
order of the court shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may deem sufficient.
Any order granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) days after notice, within which the defendant
must answer.
The RTC found that since private
respondent was abroad at the time of the service of summons, she was a resident
who was temporarily out of the country; thus, service of summons may be made
only by publication.
We do not agree.
In Montefalcon v. Vasquez,[17] we said
that because Section 16 of Rule 14
uses the words “may” and “also,” it is not mandatory. Other methods of service
of summons allowed under the Rules may also be availed of by the serving
officer on a defendant-resident who is temporarily out of the
In Montalban v. Maximo,[19]
we held that substituted service of summons under the present Section 7, Rule
14 of the Rules of Court in a suit in personam against residents of the
x x x A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot just raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him.[20]
Considering that private
respondent was temporarily out of the country, the summons and complaint may be
validly served on her through substituted service under Section 7, Rule 14 of
the Rules of Court which reads:
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.
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 RTC’s 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
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
RENATO C. CORONA
Associate Justice Chairperson |
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PRESBITERO J. VELASCO, JR. Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
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JOSE
CATRAL Associate Justice |
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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 Court’s Division.
RENATO C.
CORONA
Associate
Justice
Third
Division, Chairperson
Chief Justice
[1] Penned
by Judge Danilo P. Galvez; rollo, pp. 27-28.
[2]
[3] Rollo, p. 144.
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[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,
[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,
[18] See Asiavest Limited v. Court of Appeals, G.R. No. 128803, September 25, 1998, 296 SCRA 539, 553 (1998).
[19] No. L-22997,
[20]
[21] Keister v. Navarro, No. L-29067,
[22]
[23]
[24] HongKong and
[25]