Rule 14 (civ Rpo).docx

G.R. No. L-40491 May 28, 1975 SEGUNDO AMANTE, petitioner, vs. HON. DELFIN VIR. SUNGA, in his capacity as Presiding Judge of the Court of First Instance of Camarines Sur, Branch No. I, and VIGAAN AGRICULTURAL DEVELOPMENT CORPORATION, respondents. Pedro N. Belmi for petitioner. Eriberto J. Fante for respondents.

ANTONIO, J.:ñé+.£ªwph!1 This case raises in issue the validity of the Order dated February 14, 1975 of respondent Judge of the Court of First Instance of Camarines Sur, Branch I, setting aside its Order of December 6, 1974, granting petitioner an extension of fifteen (15) days from December 9, 1974 within which to file his answer to the complaint in Civil Case No. 7799 (Vigaan Agricultural Development Corporation vs. Segundo Amante) and declaring the petitioner in default, notwithstanding the fact that said party had already filed his answer. It appears that the petitioner, on December 2, 1974, filed a written motion with the trial court requesting for an extension of fifteen (15) days from December 9, 1974, within which to file his answer. Although it is not disputed that a copy of said motion was furnished the counsel for the plaintiff, the said pleading appears to have been addressed only to the Clerk of Court, with the request that said official submit the motion to the Court for its consideration and resolution immediately upon receipt thereof. On December 6, 1974, the trial court granted, the motion. Petitioner, however, on December 10, 1974, filed a "Motion for Bill of Particulars". Copy of this motion was appropriately addressed to the counsel of plaintiff, informing him that petitioner will submit the said motion to the, court for its consideration and resolution at 8:30 a.m. on December 23, 1974. In the meantime, on December 11, 1974, private respondent corporation, as plaintiff in said case, filed a motion to set aside the trial court's Order of December 6, 1974, alleging that the notice in petitioner's motion of December 2, 1974 was defective for non-compliance with Section 5 of Rule 15 of the Revised Rules of Court, and praying that the defendant be declared in default.

The aforecited motions of the petitioner and of the corporation were set for hearing on February 7, 1975. On said date, after the respondent corporation showed to the petitioner its Articles of Incorporation, the latter agreed to withdraw his Motion for Bill of Particulars, leaving the private respondent's motion for resolution by the Court. On the same date (February 7, 1975.), petitioner filed his answer with counterclaim to the complaint. The court a quo, however, on February, 14, 1975, on the basis of its opinion that the notice in the motion of petitioner for the extension of the period within which to file an answer was defective because of its alleged failure to comply with the requirements of Section 5 of Rule 15 of the Revised Rules of Court, set aside its Order of December 6, 1974, declared petitioner in default and authorized the Clerk of Court to receive the evidence of the plaintiff. In view of the legal issue involved, this Court considered the Comment of respondent corporation as its Answer. As the matter was already amply discussed in the pleadings, this case was deemed submitted for decision. We grant certiorari and set aside the trial court's Order of February 14, 1975. 1. The motion for extension of time within which a party may plead is not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity to resist the application,1 but an ex parte motion "made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties."2 As "a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard..." 3 It has been said that "ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay might tend to defeat the objection of the motion." 4 Section 1 of Rule 11 of the Revised Rules of Court authorizes the trial court to permit the submission of an answer even after the time fixed in the rules for its presentation. The granting of extension to plead is a matter addressed to the sound discretion of the court.5 In some cases the court allowed the defendant to file his answer "even after the time fixed for their presentation."6

Thus We have set aside orders of default where defendant's failure to answer on time was excusable.7 In the case at bar, respondent private corporation was not deprived of any substantial right by reason of the alleged defect of notice in petitioner's motion praying for an extension of the time to plead. There are motions that may be heard and granted ex parte, and a motion for extension of time to file an answer belongs to such class.8 It was, therefore, error for the court a quo to set aside its Order granting extension to petitioner within which to file his pleading. 2. Moreover, petitioner had filed a Motion for Bill of Particulars on December 10, 1974, and under the Rules "after service of the bill of particulars ... or after denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by these rules, as that to which he was entitled at the time of serving his motion, but not less than five (5) days in any event." (Section 1 [b], Rule 12, Revised Rules of Court.) The pendency of the motion for a bill of particulars, therefore, interrupts the period within which to file a responsive pleading, and movant should have, after notice of the denial of his motion, the same time to serve his answer "as that to which he was entitled at the time of serving his motion." 9 It is true that petitioner, on February 7, 1975, withdrew his Motion for a Bill of Particulars, but on the same date he also filed his answer. In the attendant circumstances, We cannot perceive how the interests of justice was served and promoted by the precipitate action of the trial court. A default judgment does not pretend to be based on the merits of the controversy. Its existence is justified by expediency. It may, however, amount to a positive and considerable injustice to the defendant. The possibility of such serious consequences necessarily requires a careful examination of the circumstances under which a default order was issued. And when no real injury would result to the interests of the plaintiff by the reopening of the case, the only objection to such action would, therefore, be solely on a technicality. On such an infirm foundation, it would be a grievous error to sacrifice the substantial rights of a litigant. For the rules should be liberally construed in order to promote their objective in assisting the parties in obtaining just, speedy and inexpensive determination of their cases. WHEREFORE, the default order of February 14, 1975, as well as the Order of March 14, 1975, denying petitioner's motion for reconsideration, is hereby set aside, and this case is ordered remanded to the court of origin for further proceedings. Costs against private respondent.

G.R. No. L-26768 October 30, 1970 FAUSTINO GOJO, petitioner-appellant, vs. SEGUNDO GOYALA and ANTONINA ALMOGUERA, respondentsappellees. Fernando P. Gerona, Sr. for petitioner-appellant. Agustin Frivaldo for respondents-appellees.

BARREDO, J.:. Appeal from the favorable decision of the Court of First Instance of Sorsogon on the counterclaim of respondents (herein appellees) in its Civil Case No. 1657-84 — the complaint (petition) of therein petitioner (herein appellant) having beet previously dismissed, without prejudice, for his failure to submit an amended complaint as required of him in the court a quo's earlier order. The record shows that on 26 May 1951, appellee Segundo, Goyala together with his now deceased wife Antonina Almoguera, who was also named respondent or defendant in the complaint or petition in the court below, sold to appellant by a "Deed of Pacto de Retro Sale" a certain parcel of agricultural land having an area of approximately two and one-half hectares for P750.00, the repurchase to be made, according to the deed, within one year. It also appears from said deed that on July 4, 1951, the vendee paid another P100.00 as addition to the purchase price. About ten (10) years after the execution of the said document, or on April 12, 1961, to be precise, the vendee filed with the Court of First Instance of Sorsogon the present case against the vendors by way of a petition for consolidation of ownership of the land described and involved in the "Deed of Pacto de Retro Sale." In his petition, the vendee, herein appellant, alleged, inter alia, that the date for repurchase, May 26, 1952, having expired and the vendors not having been able to repurchase the same under the terms and conditions of the agreement, the ownership over the land involved had become consolidated in him; and that for the purpose of recording in the Registry of Property the said consolidation of ownership, it was necessary that a judicial order be issued to that effect and accordingly prayed for such an order.

On May 26, 1961, appellee Segundo Goyala filed an opposition or answer to the petition. He therein alleged that his wife Antonina Almoguera had died in the year 1959 and denied the allegation in the petition regarding thepacto de retro sale, "the fact of the matter being," according to him, "that on May 26, 1951, the respondents obtained a cash load of P750.00 from the petitioner payable in one year without interest; that only on July 26, 1951, Dolores Goyala, daughter of the respondents, obtained from the petitioner the sum of P50.00 to be added and credited to the account of the respondents; and then on August 25, 1951, the said Dolores Goyala received from the petitioner another amount of P10.00 to be added to and credited to the account of the respondents, (so that) the total loan of the respondents from the petitioner aggregates P810.00 Philippine Currency" and that to guarantee the payment of the said loan, the respondents executed a mortgage in favor of the petitioner on a parcel of coconut land described in Annex A of the petition, hence, altho the deed was executed or drawn in the form of a pacto de retro sale, the true and real intention of the parties thereto was that the same was a mere mortgage to secure the payment of the original loan of P750.00 together with the additional amount received thereafter, making a total loan of P810.00, payable within, one year without interest. He further alleged that in the evening of May 26, 1952, he and his wife went to the house of the petitioner and tendered to him the sum of P810.00 to pay the debt, but said petitioner refused to receive the same and to cancel the document of mortgage, Annex A. The said appellee also reiterated by way of counterclaim the foregoing allegations of his answer and prayed thus:. WHEREFORE, the respondent Segundo Goyala respectfully prays this Honorable Court to dismiss the petition and render judgment in favor of the respondents as follows:. (a) Ordering the petitioner to receive the sum of P810.00 tendered or deposited by the respondents in full settlement of their debts to him; (b) Declaring the document marked Annex A of the petition to be mortgage and not a pacto de retro sale, and ordering the same cancelled and with no more force and effect; (c) Ordering the petitioner to pay the respondents the sum of P1,800.00 per annum beginning May 26, 1951 until the final

termination of this case as the reasonable monetary value of the products for the said property, and from this amount, there should be deducted however, the corresponding legal interest annually on said loans; and (d) In case, however, of the remote possibility that this Court should find the said instrument (Annex A) to be a true pacto de retro sale, and not a mere mortgage, it is hereby prayed that the petitioner be ordered to execute a deed of resale or repurchase of said property in favor of the respondents in accordance with Art. 1606 third paragraph of the Civil Code." On December 1, 1962, counsel for respondent Goyala filed a manifestation informing the trial court that the named defendant (respondent) Antonina Almoguera was already dead, she having died at Labo, Camarines Norte on March 27, 1959, and that her surviving nearest kin are her children, namely: Leonor, Pedro, Juliana, Dolores, Valentina, Soledad, Penya, Mamerta, Salvador, Genesa, Felipe, Elegio — all surnamed Goyala — with residences at Bulan, Sorsogon. Hearing was had on that manifestation, after which the trial court, under date of December 4, 1962, issued the following order:. As prayed for in the manifestation of Atty. Agustin Frivaldo counsel for the defendant, dated December 1, 1962, on the ground stated therein, the counsel for the plaintiff is hereby required to submit an amended Complaint substituting therein for one of the defendants, Antonina Almoguera, now deceased her successors in interest as party defendants, within the reglementary period. Subsequently, on January 26, 1963, appellee Goyala filed a motion to dismiss the complaint or petition on the ground that notwithstanding the lapse of 43 days after appellant's receipt of a copy of the above-quoted order of the trial court, said appellant had failed and neglected to submit the amended complaint required of him. The motion was opposed by appellant; and the trial court, resolving the incident, issued the following order on February 15, 1963:.

The matter under consideration is the motion to dismiss filed by the defendants on the ground that the plaintiff has failed and neglected to submit the amended complaint as required in the order of this Court dated December 4, 1962, which the plaintiff has received on December 18, 1962. From December 13, 1962 when the motion to dismiss was filed, 43 days have elapsed. On February 6, 1963 when the plaintiff has again failed to file together with said opposition the required amended complaint, and although plaintiff has requested for a reasonable extension of time within which to file the said pleading, it is regretable to state that up to the present has neglected to do so. WHEREFORE, the complaint is hereby dismissed without prejudice. Thereafter, on July 10, 1963, appellee filed a motion to declare appellant in default in respect of said appellee's counterclaim, contained in his answer (opposition) to the dismissed complaint petition) of appellant. This motion was granted by the trial court in its order of July 11, 1963, to wit:. Upon petition of the counsel for the defendant Segundo Goyala to declare the plaintiff in default on the ground of failure on the part of the plaintiff to answer the counterclaim filed by said defendant Segundo Goyala within the reglementary period, despite the fact that the plaintiff's counsel was duly served with a copy thereof, and the plaintiff's complaint was already dismissed by this Court in its order of February 15, 1963 on the ground of neglect to submit the amended complaint as required in the Court order of December 4, 1962, the plaintiff is hereby declared in default on the counterclaim filed by said defendant Segundo Goyala. Let the defendant Segundo Goyala submit his evidence before the Clerk of Court, who is hereby commissioned to receive the same. As directed in the order above-quoted, the Clerk of Court received the evidence of appellee in respect of his counterclaim and, thereafter, on November 15, 1963 the trial court rendered favorable judgment on appellee's counterclaim. The pertinent portions of the decision referred to read thus:.

It appears that on May 26, 1951, respondents obtained a loan of P750.00 from the petitioner. To secure the loan, respondents executed a document, which was made a Deed of Pacto de Retro Sale (Exh. "A"), on suggestion of petitioner to exempt himself from liabilities under the Usury Law. Dolores Goyala, one of the daughters of respondents, obtained an additional loan of P50.00 on July 26, 1951, (Exh. "A-1") and another P10.00 on August 19, 1951, (Exh. "A-3") from the petitioner which amounts were duly authorized and acknowledged by respondent Segundo Goyala. In the late afternoon of May 26, 1952, the last day to redeem the property, Segundo Goyala, tendered the amount of P810.00 to herein petitioner in complete payment of the loan and to release the property securing the said loan, but was refused because it was already night time, and was advised instead to return the following day. When Segundo Goyala returned the following day to redeem the property he was told by petitioner that the period to redeem has already expired. Segundo Goyala testified further that he tried no less than three times to redeem the property but each time petitioner refused the redemption money. It appears further that the petitioner is in possession of the land since May 26, 1951, after the execution of Exhibit "A" up to the present time and had appropriated to himself the products during the period. It is shown further that the land is a productive coconut land and has a fair market value of P5,000.00 with an annual yield of P1,800.00. The respondents are not however entitled to be reimbursed of the value of the products obtained by the petitioner who acted in the belief that the agreement was a Pacto de Retro Sale which turned out to be otherwise as the Court now so declares. WHEREFORE, in view of the foregoing the Court hereby declares the Deed of Pacto de Retro Sale (Exh. "A") an equitable mortgage and respondents Segundo Goyala and the heirs of Antonina Almoguera are allowed to redeem the property; orders Faustino Gojo to withdraw the amount of P810.00 deposited with the Clerk of Court in full settlement of the loan, and hereby cancels and declares without force and effect the aforementioned Deed of Pacto de Retro Sale

executed by the spouses Segundo Goyala and Antonina Almoguera in favor of Faustino Gojo. Without costs. The above-quoted decision was subsequently amended in an order of December 19, 1963, as follows:. It appearing that in the dispositive part of the decision there was no directive to restore the possession to the defendants upon execution, the dispositive portion of the said decision is hereby amended to include therein an additional directive ordering the plaintiff to deliver and restore the possession of the land in question to the defendants. Dissatisfied with the decision referred to, appellant appealed to the Court of Appeals which upon its finding that the said appeal involves purely questions of law, certified the same to this Court for resolution. In his brief, appellant assigns the following errors allegedly committed by the trial court:. 1. THE LOWER COURT ERRED IN DECLARING PLAINTIFF IN DEFAULT WITH RESPECT TO DEFENDANT'S COUNTERCLAIM; 2. THE LOWER COURT ERRED IN DEPUTIZING OR COMMISSIONING THE CLERK OF COURT TO RECEIVE THE EVIDENCE OF THE DEFENDANT SEGUNDO GOYALA; 3. THE LOWER COURT ERRED IN RENDERING JUDGMENT IN FAVOR OF THE RESPONDENT SEGUNDO GOYALA AND THE HEIRS OF ANTONINA ALMOGUERA ALLOWING THEM TO REDEEM THE LAND IN QUESTION FROM THE PETITIONER FAUSTINO GOJO FOR THE SUM OF P810.00. The thrust of appellant's argument in respect of the first assignment of error is to the effect that there is no occasion for the trial court to declare him in default in respect of appellee's counterclaim in this case, for the reasons that: (a) the said counterclaim "falls within the category of compulsory counterclaim" which does not call for an independent answer as the complaint already denies

its material allegations; and (b) the dismissal of the complaint in this case without prejudice carried with it the dismissal of the said counterclaim. The first assignment of error of appellant is well taken. It is now settled that a plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint.1 In the instant case, there can be no doubt that appellant's counterclaim was a compulsory one in as much as it arises out of or is necessarily connected with transaction or occurrence that is the subject matter of the complaint; the complaint alleged that the right of appellee to repurchase the property in question had already expired and asked for an order of consolidation; on the other hand, appellant's counterclaim was for reformation of the deed claiming that it was only a mortgage. Thus the counterclaim was clearly inconsistent with and directly controverted; the whole theory and basic allegations of the complaint. In consequence, appellant's complaint stood as the answer to appellee's counterclaim; hence, the incorrectness of the trial court's order declaring the appellant in default in regard to said counterclaim is evident. Regarding the dismissal of petitioner's complaint, We hold also, that the trial court committed reversible error in ordering the same. It is true that under Section 3 of Rule 17, a complaint may be dismissed for failure to prosecute if the plaintiff fails to comply with an order of the court, but it is obvious that the said provision cannot apply when the order supposedly ignored is a void one, as in this case. Here, the trial court ordered petitioner to amend the complaint only because it was informed that one of the defendants had died, the court directing that the plaintiff should name the heirs of the deceased as defendants in lieu of said deceased. Such an order runs counter to the ruling of this Court in Caseñas vs. Resales, et al. 2 which is squarely applicable to the Situation herein obtaining. In that case, We held:. When certain of the parties to Civil Case No. 261 died and due notice thereof was given to the trial court, it devolved on the said court to order, not the amendment of the complaint, but the appearance of the legal representatives of the deceased in accordance with the procedure and manner outlined in Rule 3, Section 17 of the Rules of Court, which provide:. "SECTION 17. Death of party. — After a party dies and the claim is not thereby extinguished, the court shall order, upon

proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs." In the case of Barrameda vs. Barbara, 90 Phil. 718, this Court held that an order to amend the complaint, before the proper substitution of parties as directed by the aforequoted rule has been effected, is void and imposes upon the plaintiff no duty to comply therewith to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void. In a subsequent case, Ferriera, et al. vs. Gonzales, et al., G.R. No. L-11567, July 17, 1958, this Court affirmed a similar conclusion on the determination that the continuance of a proceedings during the pendency of which a party thereto dies, without such party having been validly substituted in accordance with the rules, amounts to a "lack of jurisdiction". The facts of this case fit four square into the Barrameda case above-cited, save for the minor variance that in the former two of the litigants died while only one predeceased the case in Barrameda. Here, as in Barrameda, during the pendency of (the) civil case, notice was given to the trial court of the deaths of one of the plaintiffs and one of the defendants in it. Instead of ordering the substitution of the deceased's legal representatives in accordance with Rule 3, Sec. 17 of the Rules

of Court, the trial court directed the surviving plaintiff to amend the complaint and when the latter failed to comply therewith, the said court dismissed the complaint for such non-compliance. We must hold, therefore, as We did in Barrameda that inasmuch as there was no obligation on the part of the plaintiff-appellant herein to amend his complaint in Civil Case No. 261, any such imposition being void, his failure to comply with such an order did not justify the dismissal of his complaint. Grounded as it was upon a void order, the dismissal was itself void." (To the same effect, see World Wide Insurance & Surety Co. v. Jose, etc., et al., 96 Phil. 45, 50). Besides, in line with the principle underlying Sec. 2 of Rule 17, it is not proper to dismiss a complaint when a compulsory counterclaim has been pleaded by defendant. The reason is obvious. Under the cited provision, the right of the plaintiff to move for the dismissal of an action after the defendant has filed his answer is qualified by the clause providing that: "If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court." With this limitation, the power of the court to dismiss the complaint upon motion of plaintiff, which is usually without prejudice, is not purely discretionary.3 The purpose is to avoid multiplicity of suits over the same matter which would necessarily entail unnecessary expense and, what is worse, possibility of conflict and inconsistency in the resolution of the same questions. The same considerations would obtain, if the defendant were the one to ask for dismissal. The best interests of justice require that conflicting claims regarding the same matter should be decided in one single proceeding. Dismissing the complaint without prejudice, as the trial court has done in this case, albeit upon motion of the defendant, will not prevent the undesirable multiplication of suits and reventilation of the same issues in the subsequent action that may be filed by virtue of the reservation made in the disputed order of dismissal. Having arrived at the foregoing conclusions, it becomes unnecessary to discuss the other two assigned errors. WHEREFORE, the decision appealed from is set aside and this case is remanded to the court below for further proceedings in consonance with the above opinion, with costs against appellee.

DOLORES MONTEFALCON MONTEFALCON, Petitioners,

&

LAURENCE

- versus -

RONNIE S. VASQUEZ, Respondent.

G.R. No. 165016

Vasquez was in Manila. Vasquezs mother returned the documents to the clerk of court, who informed the court of the non-service of summons.[6]

Present:

Petitioners then filed a motion to declare Vasquez in default. The court denied it for lack of proper service of summons.[7] QUISUMBING, J., Chairperson, TINGA, In 2000, the court issued an alias summons on Vasquez at 10 Int. President REYES,* ** Garcia St., Zone 6, Signal Village, Taguig, Metro Manila upon petitioners LEONARDO-DE CASTRO, and motion. Albeit a Taguig deputy sheriff served it by substituted service on BRION, JJ. Vasquezs caretaker Raquel Bejer, the sheriffs return incorrectly stated Lazaro as Vasquezs surname.[8] Promulgated:

June 17, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.: This petition for review assails the September 29, 2003 Decision[1] and the July 19, 2004 Resolution[2] of the Court of Appeals in CA-G.R. CV No. 71944, which had reversed the May 28, 2001 Decision[3] of the Regional Trial Court (RTC), Branch 19, of Naga City in Civil Case No. RTC 99-4460. The facts culled from the records are as follows. In 1999, petitioner Dolores P. Montefalcon filed a Complaint [4] for acknowledgment and support against respondent Ronnie S. Vasquez before the RTC of Naga City.Alleging that her son Laurence is the illegitimate child of Vasquez, she prayed that Vasquez be obliged to give support to copetitioner Laurence Montefalcon, whose certificate of live birth he signed as father.[5] According to petitioners, Vasquez only gave a total of P19,000 as support for Laurence since Laurence was born in 1993. Vasquez allegedly also refused to give him regular school allowance despite repeated demands. Petitioner Dolores added that she and Vasquez are not legally married, and that Vasquez has his own family. A sheriff tried to serve the summons and complaint on Vasquez in Aro-aldao, Nabua, Camarines Sur. Vasquezs grandfather received them as

Another alias summons[9] was issued, also received by Bejer. The second sheriffs return states: THIS IS TO CERTIFY THAT on the 19th day of July 2000 the undersigned sheriff caused the service of summons issued by the court in the above-entitled case together with the copy of the complaint and annexes attached thereon upon defendant RONNIE S. VASQUEZ, by substituted service, thru his caretaker, RAQUEL BEJER, a person of sufficient discretion, who acknowledged the receipt thereof at No. 10 Int. President Garcia St. Zone 6, Signal Village, Taguig, Metro Manila, as evidenced by her signature appearing at the lower portion of the original copy of summons. WHEREFORE, said summons is hereby returned to the court of origin DULY SERVED for its records and information. Taguig for Naga City, July 19, 2000 (SGD.) ERNESTO G. RAYMUNDO, JR., Deputy Sheriff MTC BR 74 Taguig, Metro Manila[10] On petitioners motion, the trial court declared Vasquez in default for failure to file an answer despite the substituted service of summons. Vasquez was furnished with court orders and notices of the proceedings at his last

known address, but these were returned as he had allegedly moved to another place and left no new address.[11] In 2001, the court granted petitioners prayers, explaining that they had no illmotive and that Dolores gave a truthful testimony. The court added that Vasquez admitted the truth of the allegations by his silence. It further explained that Laurences certificate of live birth, being a public document, is irrefutably a prima facie evidence of illegitimate filiation. The trial court decreed: WHEREFORE, by preponderant evidence, judgment is hereby rendered in favor of the plaintiffs Dolores Montefalcon and her minor child Laurence Montefalcon and against defendant Ronnie S. Vasquez who is hereby ordered to: 1. Acknowledge plaintiff Laurence Montefalcon as his illegitimate child with Dolores Montefalcon; 2. Give support to the said minor in the amount of FIVE THOUSAND (P5,000.00) PESOS monthly commencing on June 1, 1993, the past support for eight (8) years in the amount of FOUR HUNDRED EIGHTY THOUSAND (P480,000.00) PESOS less the amount of NINETEEN THOUSAND (P19,000.00) PESOS previously given, shall be paid promptly and the monthly support of FIVE THOUSAND (P5,000.00) PESOS shall be paid not later than the end of each month beginning on July 31, 2001 and every end of the month thereafter as prayed for in the complaint; and 3. Pay the sum of TEN THOUSAND (P10,000.00) PESOS and THREE THOUSAND (P3,000.00) PESOS as attorneys and appearance fees, respectively, and litigation expenses of ONE THOUSAND (P1,000.00) PESOS. SO ORDERED.[12] In the same year, Vasquez surfaced. He filed a notice of appeal to which petitioners opposed. Appeal was granted by the court.[13] Before the appellate court, he argued that the trial court erred in trying and deciding the case as it never acquired jurisdiction over his person, as well as in awarding P5,000-permonth support, which was allegedly excessive and exorbitant. The appellate court noted that the service of summons on Vasquez was defective as there was no explanation of impossibility of personal service and an attempt to effect personal service, and decreed as follows:

WHEREFORE, based on the foregoing premises, the instant appeal is GRANTED. The appealed May 28, 2001 Decision of the Regional Trial Court of Naga City in Civil Case No. RTC 99-4460 is hereby NULLIFIED and SET ASIDE. Accordingly, let this case be REMANDED to the court a quo for further proceedings. SO ORDERED.[14] Petitioners argued in their motion for reconsideration[15] that any attempt at personal service of summons was needless as Vasquez already left for abroad. The appellate court, however, denied the motion. Hence, this petition. Petitioners assign two appellate court errors: I. THE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT IN THIS CASE WAS NOT VALIDLY SERVED WITH THE SUMMONS AND COMPLAINT IN CIVIL CASE NO. RTC 99-4460; AND THAT II. THE COURT OF APPEALS ERRED IN ANNUL[L]ING AND SETTING ASIDE THE TRIAL COURTS DECISION (ANNEX B) FOR LACK OF JURISDICTION.[16] Petitioners justify the validity of substituted service as Vasquez had left as overseas seafarer when the sheriff served the summons on July 19, 2000 in Taguig. Noting that Vasquezs seamans book indicated that he left the country on January 24, 2000 and came back on October 12, 2000, they criticize the appellate court for anchoring its rulings on mere technicality. Vasquez counters that because he was abroad, service of summons should have been personal or by publication as substituted service is proper only if a defendant is in the country. Vasquez also added that the sheriffs return did not state that he exerted efforts to personally serve the summons.[17]

In their reply, petitioners insist that a substituted service is the normal method if one is temporarily away from the country as personal service abroad or by publication are not ordinary means of service.[18] Simply put, the issues now for resolution are: (1) whether there is a valid substituted service of summons on Vasquez to clothe the trial court with jurisdiction over his person; and (2) whether he is obliged to give support to co-petitioner Laurence. To acquire jurisdiction over the person of a defendant, service of summons must be personal,[19] or if this is not feasible within a reasonable time, then by substituted service.[20] It is of judicial notice that overseas Filipino seafarers are contractual employees. They go back to the country once their contracts expire, and wait for the signing of another contract with the same or new manning agency and principal if they wish. It is therefore common knowledge that a Filipino seaman often has a temporary residence in the urban areas like Metro Manila, where majority of the manning agencies hold offices, aside from his home address in the province where he originates. In this case, respondent Vasquez hails from Camarines Sur but he has lived in Taguig City when the complaint was filed. Notice may then be taken that he has established a residence in either place.Residence is a place where the person named in the summons is living at the time when the service was made, even though he was temporarily abroad at the time. As an overseas seafarer, Vasquez was a Filipino resident temporarily out of the country. Hence, service of summons on him is governed by Rule 14, Section 16 of the Rules of Court: SEC. 16. Residents temporarily out of the Philippines. ─ When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (Emphasis supplied.) The preceding section referred to states: 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. 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-seaman. Ideally, Vasquez must be personally served summons. But was personal service of summons practicable? Conversely, was substituted service of summons justified? Obviously, personal service of summons was not practicable since the defendant was temporarily out of the country. To proceed with personal service of summons on a defendant-seaman who went on overseas contract work ─ would not only be impractical and futile ─ it would also be absurd. The impossibility of prompt personal service was shown by the fact that the Naga City-based sheriff purposely went to a barrio in Camarines Sur to serve the summons personally on Vasquez. When service of summons failed, said sheriff ascertained the whereabouts of Vasquez. Upon being informed that Vasquez was in Manila, the Naga court commissioned a Taguig City-based sheriff to serve the summons. Both the Naga and Taguig sheriffs inquired about Vasquezs whereabouts, signifying that they did not immediately resort to substituted service. There was no undue haste in effecting substituted service. The fact that the Naga court allowed a reasonable time to locate Vasquez to as far as Taguig shows that there was indeed no precipitate haste in serving the summons. In this case, we agree that the substituted service in Taguig was valid and justified because previous attempts were made by the sheriffs to serve the

summons, but to no avail. Diligent efforts were evidently exerted in the conduct of the concerned sheriffs in the performance of their official duty. Also, the person who received the alias summons was of suitable age and discretion, then residing at Vasquezs dwelling. There is no quarrel that it was really Vasquezs residence, as evidenced by his employment contract, executed under the supervision and authority of the Philippine Overseas Employment Administration (POEA). Vasquez cannot deny that in his contract of employment and seafarers information sheet, both bearing POEAs letterhead, his address in Metro Manila was what was correctly mentioned in the alias summons that Bejer received. She must have informed Vasquez one way or another of the suit upon his return in October 2000 after finishing his nine-month contract with Fathom Ship Management. Thus, it is reasonable to conclude that he had enough time to have the default order set aside. The default judgment was rendered on May 28, 2001. He also had enough time to file a motion for reconsideration. But he did nothing. The interregnum between the first but failed attempt at personal service by the RTC of Naga City in Vasquezs place in Camarines Sur to the final substituted service in Metro Manila by a Taguig RTC sheriff was almost eight months, a reasonable time long enough to conclude that personal service had failed and was futile. Montalban v. Maximo[21] offers a rational and logical solution of the issue. We held in said case that the normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. Summons in a suit in personam against a temporarily absent resident may be by substituted service as domiciliaries of a State are always amenable to suits in personam therein.[22] Residence is 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. A plaintiff is merely required to know the defendants residence, office or regular business place. He need not know where a resident defendant actually is at the very moment of filing suit. He is not even duty-bound to ensure that the person upon whom service was actually made delivers the summons to the defendant or informs him about it. The law presumes that for him. It is immaterial that defendant does not receive actual notice. As well said in Montalban:

. . . 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 in justice 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.[23] Aside from, at present, various forms of texting and short message services by the ubiquitous cellular phones. More importantly, the letter of the law must yield to its spirit. The absence in the final sheriffs return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. Such failure should not unduly prejudice petitioners if what was undisclosed was in fact done. Proof of prior attempts at personal service may have been submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service[24] had Vasquez surfaced when the case was heard. In fact, he was declared in default. It was only when a judgment against him was rendered by the trial court that he questioned the validity of service of summons before the appellate court. Such failure to appear, and then later to question the courts jurisdiction over his person, should not be taken against herein petitioners.

Between Vasquezs self-serving assertion that he only came to know of the case when his mother told him about the trial courts decision and the sheriffs return on the substituted service which carries a presumption of regularity, the latter is undoubtedly deserving of more faith and credit. The sheriffs certificate of service of summons is prima facieevidence of the facts set out in it. Only clear and convincing evidence may overcome its presumption of regularity. Given the circumstances in the present case, we agree that the presumption of regularity in the performance of duty on the part of the sheriff stands. [25] On the second issue, the trial courts order must also be sustained. Copetitioner Laurence is legally entitled to support from the respondent, and the amount of P5,000monthly set by the trial court is neither excessive nor unreasonable. Article 175[26] of the Family Code of the Philippines mandates that illegitimate filiation may be established in the same way and on the same evidence as legitimate children.Under Article 172,[27] the filiation of legitimate children is established by any of the following: (1) through record of birth appearing in the civil register or a final order; or (2) by admission of filiation in a public document or private handwritten instrument and signed by the parent concerned; or in default of these two, by open and continuous possession of the status of a legitimate child or by any other means allowed by the Rules of Court and special laws. Laurences record of birth is an authentic, relevant and admissible piece of evidence to prove paternity and filiation. Vasquez did not deny that Laurence is his child with Dolores. He signed as father in Laurences certificate of live birth, a public document. He supplied the data entered in it. Thus, it is a competent evidence of filiation as he had a hand in its preparation. In fact, if the child had been recognized by any of the modes in the first paragraph of Article 172, there is no further need to file any action for acknowledgment because any of said modes is by itself a consummated act.[28] As filiation is beyond question, support follows as matter of obligation. Petitioners were able to prove that Laurence needs Vasquezs support and that Vasquez is capable of giving such support. Dolores testified that she spent around P200,000 for Laurence; she spends P8,000 a month for his schooling and their subsistence. She told the lower court Vasquez was earning US$535 monthly based on his January 10, 2000 contract of employment[29] with Fathom Ship Management and his seafarer information

sheet.[30] That income, if converted at the prevailing rate, would be more than sufficient to cover the monthly support for Laurence. Under Article 195 (4)[31] of the Family Code, a parent is obliged to support his illegitimate child. The amount is variable. There is no final judgment thereof as it shall be in proportion to the resources or means of the giver and the necessities of the recipient.[32] It may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support.[33] Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.[34] Under the premises, the award of P5,000 monthly support to Laurence is reasonable, and not excessive nor exorbitant. In sum, we rule that the Court of Appeals erred in invalidating the substituted service of summons and remanding the case. As there was valid substituted service of summons under the circumstances of this case, the lower court acquired jurisdiction over his person and correctly ordered him to pay past and present monthly support to his illegitimate child as well as attorneys fees and litigation expenses to petitioners. WHEREFORE, the petition is GRANTED. The Decision dated September 29, 2003 and Resolution dated July 19, 2004 of the Court of Appeals in CA-G.R. CV No. 71944 are REVERSED and SET ASIDE. The Decision dated May 28, 2001 of the Regional Trial Court, Branch 19, Naga City in Civil Case No. RTC 99-4460 is hereby REINSTATED. Costs against respondent. SO ORDERED.

G.R. No. 171092

March 15, 2010

EDNA DIAGO vs. BRITISH AIRWAYS, Respondent.

₱1 million as exemplary damages, ₱300,000.00 as attorney’s fees, ₱200,000.00 as litigation expenses, and cost of the suit. LHUILLIER, Petitioner, On May 16, 2005, summons, together with a copy of the complaint, was served on the respondent through Violeta Echevarria, General Manager of EuroPhilippine Airline Services, Inc.3

DECISION DEL CASTILLO, J.: Jurisdictio est potestas de publico introducta cum necessitate juris dicendi. Jurisdiction is a power introduced for the public good, on account of the necessity of dispensing justice.1 Factual Antecedents On April 28, 2005, petitioner Edna Diago Lhuillier filed a Complaint 2 for damages against respondent British Airways before the Regional Trial Court (RTC) of Makati City. She alleged that on February 28, 2005, she took respondent’s flight 548 from London, United Kingdom to Rome, Italy. Once on board, she allegedly requested Julian Halliday (Halliday), one of the respondent’s flight attendants, to assist her in placing her hand-carried luggage in the overhead bin. However, Halliday allegedly refused to help and assist her, and even sarcastically remarked that "If I were to help all 300 passengers in this flight, I would have a broken back!" Petitioner further alleged that when the plane was about to land in Rome, Italy, another flight attendant, Nickolas Kerrigan (Kerrigan), singled her out from among all the passengers in the business class section to lecture on plane safety. Allegedly, Kerrigan made her appear to the other passengers to be ignorant, uneducated, stupid, and in need of lecturing on the safety rules and regulations of the plane. Affronted, petitioner assured Kerrigan that she knew the plane’s safety regulations being a frequent traveler. Thereupon, Kerrigan allegedly thrust his face a mere few centimeters away from that of the petitioner and menacingly told her that "We don’t like your attitude." Upon arrival in Rome, petitioner complained to respondent’s ground manager and demanded an apology. However, the latter declared that the flight stewards were "only doing their job." Thus, petitioner filed the complaint for damages, praying that respondent be ordered to pay ₱5 million as moral damages, ₱2 million as nominal damages,

On May 30, 2005, respondent, by way of special appearance through counsel, filed a Motion to Dismiss4 on grounds of lack of jurisdiction over the case and over the person of the respondent. Respondent alleged that only the courts of London, United Kingdom or Rome, Italy, have jurisdiction over the complaint for damages pursuant to the Warsaw Convention, 5 Article 28(1) of which provides: An action for damages must be brought at the option of the plaintiff, either before the court of domicile of the carrier or his principal place of business, or where he has a place of business through which the contract has been made, or before the court of the place of destination. Thus, since a) respondent is domiciled in London; b) respondent’s principal place of business is in London; c) petitioner bought her ticket in Italy (through Jeepney Travel S.A.S, in Rome);6 and d) Rome, Italy is petitioner’s place of destination, then it follows that the complaint should only be filed in the proper courts of London, United Kingdom or Rome, Italy. Likewise, it was alleged that the case must be dismissed for lack of jurisdiction over the person of the respondent because the summons was erroneously served on Euro-Philippine Airline Services, Inc. which is not its resident agent in the Philippines. On June 3, 2005, the trial court issued an Order requiring herein petitioner to file her Comment/Opposition on the Motion to Dismiss within 10 days from notice thereof, and for respondent to file a Reply thereon. 7 Instead of filing a Comment/Opposition, petitioner filed on June 27, 2005, an Urgent Ex-Parte Motion to Admit Formal Amendment to the Complaint and Issuance of Alias Summons.8 Petitioner alleged that upon verification with the Securities and Exchange Commission, she found out that the resident agent of respondent in the Philippines is Alonzo Q. Ancheta. Subsequently, on September 9, 2005, petitioner filed a Motion to Resolve Pending Incident and Opposition to Motion to Dismiss.9 Ruling of the Regional Trial Court

On October 14, 2005, the RTC of Makati City, Branch 132, issued an Order10 granting respondent’s Motion to Dismiss. It ruled that:

COUNTRY; AND THUS IS OUTSIDE THE AMBIT OF THE WARSAW CONVENTION.

The Court sympathizes with the alleged ill-treatment suffered by the plaintiff. However, our Courts have to apply the principles of international law, and are bound by treaty stipulations entered into by the Philippines which form part of the law of the land. One of this is the Warsaw Convention. Being a signatory thereto, the Philippines adheres to its stipulations and is bound by its provisions including the place where actions involving damages to plaintiff is to be instituted, as provided for under Article 28(1) thereof. The Court finds no justifiable reason to deviate from the indicated limitations as it will only run counter to the provisions of the Warsaw Convention. Said adherence is in consonance with the comity of nations and deviation from it can only be effected through proper denunciation as enunciated in the Santos case (ibid). Since the Philippines is not the place of domicile of the defendant nor is it the principal place of business, our courts are thus divested of jurisdiction over cases for damages. Neither was plaintiff’s ticket issued in this country nor was her destination Manila but Rome in Italy. It bears stressing however, that referral to the court of proper jurisdiction does not constitute constructive denial of plaintiff’s right to have access to our courts since the Warsaw Convention itself provided for jurisdiction over cases arising from international transportation. Said treaty stipulations must be complied with in good faith following the time honored principle of pacta sunt servanda.

II. WHETHER x x x RESPONDENT AIR CARRIER OF PASSENGERS, IN FILING ITS MOTION TO DISMISS BASED ON LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THE CASE AND OVER ITS PERSON MAY BE DEEMED AS HAVING IN FACT AND IN LAW SUBMITTED ITSELF TO THE JURISDICTION OF THE LOWER COURT, ESPECIALLY SO, WHEN THE VERY LAWYER ARGUING FOR IT IS HIMSELF THE RESIDENT AGENT OF THE CARRIER.

The resolution of the propriety of service of summons is rendered moot by the Court’s want of jurisdiction over the instant case. WHEREFORE, premises considered, the present Motion to Dismiss is hereby GRANTED and this case is hereby ordered DISMISSED. Petitioner filed a Motion for Reconsideration but the motion was denied in an Order11 dated January 4, 2006. Petitioner now comes directly before us on a Petition for Review on Certiorari on pure questions of law, raising the following issues: Issues I. WHETHER X X X PHILIPPINE COURTs HAVE JURISDICTION OVER A TORTIOUS CONDUCT COMMITTED AGAINST A FILIPINO CITIZEN AND RESIDENT BY AIRLINE PERSONNEL OF A FOREIGN CARRIER TRAVELLING BEYOND THE TERRITORIAL LIMIT OF ANY FOREIGN

Petitioner’s Arguments Petitioner argues that her cause of action arose not from the contract of carriage, but from the tortious conduct committed by airline personnel of respondent in violation of the provisions of the Civil Code on Human Relations. Since her cause of action was not predicated on the contract of carriage, petitioner asserts that she has the option to pursue this case in this jurisdiction pursuant to Philippine laws. Respondent’s Arguments In contrast, respondent maintains that petitioner’s claim for damages fell within the ambit of Article 28(1) of the Warsaw Convention. As such, the same can only be filed before the courts of London, United Kingdom or Rome, Italy. Our Ruling The petition is without merit. The Warsaw Convention has the force and effect of law in this country. It is settled that the Warsaw Convention has the force and effect of law in this country. In Santos III v. Northwest Orient Airlines,12 we held that: The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to International Transportation by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933. The Convention was concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The Philippine instrument of accession was signed by President Elpidio Quirino on October 13, 1950, and was deposited with the Polish government on November 9, 1950. The Convention became applicable to the

Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring our formal adherence thereto, "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof."

In the case at bench, petitioner’s place of departure was London, United Kingdom while her place of destination was Rome, Italy.15 Both the United Kingdom16 and Italy17 signed and ratified the Warsaw Convention. As such, the transport of the petitioner is deemed to be an "international carriage" within the contemplation of the Warsaw Convention.

The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the force and effect of law in this country.13

Since the Warsaw Convention applies in the instant case, then the jurisdiction over the subject matter of the action is governed by the provisions of the Warsaw Convention.

The Warsaw Convention applies because the air travel, where the alleged tortious conduct occurred, was between the United Kingdom and Italy, which are both signatories to the Warsaw Convention.

Under Article 28(1) of the Warsaw Convention, the plaintiff may bring the action for damages before – 1. the court where the carrier is domiciled;

Article 1 of the Warsaw Convention provides: 2. the court where the carrier has its principal place of business; 1. This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2. For the purposes of this Convention the expression "international carriage" means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention. (Emphasis supplied) Thus, when the place of departure and the place of destination in a contract of carriage are situated within the territories of two High Contracting Parties, said carriage is deemed an "international carriage". The High Contracting Parties referred to herein were the signatories to the Warsaw Convention and those which subsequently adhered to it.14

3. the court where the carrier has an establishment by which the contract has been made; or 4. the court of the place of destination. In this case, it is not disputed that respondent is a British corporation domiciled in London, United Kingdom with London as its principal place of business. Hence, under the first and second jurisdictional rules, the petitioner may bring her case before the courts of London in the United Kingdom. In the passenger ticket and baggage check presented by both the petitioner and respondent, it appears that the ticket was issued in Rome, Italy. Consequently, under the third jurisdictional rule, the petitioner has the option to bring her case before the courts of Rome in Italy. Finally, both the petitioner and respondent aver that the place of destination is Rome, Italy, which is properly designated given the routing presented in the said passenger ticket and baggage check. Accordingly, petitioner may bring her action before the courts of Rome, Italy. We thus find that the RTC of Makati correctly ruled that it does not have jurisdiction over the case filed by the petitioner. Santos III v. Northwest Orient Airlines18 applies in this case. Petitioner contends that Santos III v. Northwest Orient Airlines 19 cited by the trial court is inapplicable to the present controversy since the facts thereof are not similar with the instant case.

We are not persuaded. In Santos III v. Northwest Orient Airlines,20 Augusto Santos III, a resident of the Philippines, purchased a ticket from Northwest Orient Airlines in San Francisco, for transport between San Francisco and Manila via Tokyo and back to San Francisco. He was wait-listed in the Tokyo to Manila segment of his ticket, despite his prior reservation. Contending that Northwest Orient Airlines acted in bad faith and discriminated against him when it canceled his confirmed reservation and gave his seat to someone who had no better right to it, Augusto Santos III sued the carrier for damages before the RTC. Northwest Orient Airlines moved to dismiss the complaint on ground of lack of jurisdiction citing Article 28(1) of the Warsaw Convention. The trial court granted the motion which ruling was affirmed by the Court of Appeals. When the case was brought before us, we denied the petition holding that under Article 28(1) of the Warsaw Convention, Augusto Santos III must prosecute his claim in the United States, that place being the (1) domicile of the Northwest Orient Airlines; (2) principal office of the carrier; (3) place where contract had been made (San Francisco); and (4) place of destination (San Francisco).21 We further held that Article 28(1) of the Warsaw Convention is jurisdictional in character. Thus: A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision. First, the wording of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform manner the conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdictions," which, as such, cannot be left to the will of the parties regardless of the time when the damage occurred.

established pursuant to the applicable domestic law. Only after the question of which court has jurisdiction is determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which the case is submitted.22 Contrary to the contention of petitioner, Santos III v. Northwest Orient Airlines23 is analogous to the instant case because (1) the domicile of respondent is London, United Kingdom;24 (2) the principal office of respondent airline is likewise in London, United Kingdom;25 (3) the ticket was purchased in Rome, Italy;26 and (4) the place of destination is Rome, Italy.27 In addition, petitioner based her complaint on Article 217628 of the Civil Code on quasi-delict and Articles 1929 and 2130 of the Civil Code on Human Relations. In Santos III v. Northwest Orient Airlines,31 Augusto Santos III similarly posited that Article 28 (1) of the Warsaw Convention did not apply if the action is based on tort. Hence, contrary to the contention of the petitioner, the factual setting of Santos III v. Northwest Orient Airlines32 and the instant case are parallel on the material points. Tortious conduct as ground for the petitioner’s complaint is within the purview of the Warsaw Convention. Petitioner contends that in Santos III v. Northwest Orient Airlines,33 the cause of action was based on a breach of contract while her cause of action arose from the tortious conduct of the airline personnel and violation of the Civil Code provisions on Human Relations.34 In addition, she claims that our pronouncement in Santos III v. Northwest Orient Airlines35 that "the allegation of willful misconduct resulting in a tort is insufficient to exclude the case from the comprehension of the Warsaw Convention," is more of an obiter dictum rather than the ratio decidendi.36 She maintains that the fact that said acts occurred aboard a plane is merely incidental, if not irrelevant.37 We disagree with the position taken by the petitioner. Black defines obiter dictum as "an opinion entirely unnecessary for the decision of the case" and thus "are not binding as precedent."38 In Santos III v. Northwest Orient Airlines,39 Augusto Santos III categorically put in issue the applicability of Article 28(1) of the Warsaw Convention if the action is based on tort.

xxxx In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in the international sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction of a particular court must be

In the said case, we held that the allegation of willful misconduct resulting in a tort is insufficient to exclude the case from the realm of the Warsaw Convention. In fact, our ruling that a cause of action based on tort did not bring the case outside the sphere of the Warsaw Convention was our ratio decidendi in disposing of the specific issue presented by Augusto Santos III. Clearly, the

contention of the herein petitioner that the said ruling is an obiter dictum is without basis. Relevant to this particular issue is the case of Carey v. United Airlines,40 where the passenger filed an action against the airline arising from an incident involving the former and the airline’s flight attendant during an international flight resulting to a heated exchange which included insults and profanity. The United States Court of Appeals (9th Circuit) held that the "passenger's action against the airline carrier arising from alleged confrontational incident between passenger and flight attendant on international flight was governed exclusively by the Warsaw Convention, even though the incident allegedly involved intentional misconduct by the flight attendant." 41 In Bloom v. Alaska Airlines,42 the passenger brought nine causes of action against the airline in the state court, arising from a confrontation with the flight attendant during an international flight to Mexico. The United States Court of Appeals (9th Circuit) held that the "Warsaw Convention governs actions arising from international air travel and provides the exclusive remedy for conduct which falls within its provisions." It further held that the said Convention "created no exception for an injury suffered as a result of intentional conduct" 43 which in that case involved a claim for intentional infliction of emotional distress. It is thus settled that allegations of tortious conduct committed against an airline passenger during the course of the international carriage do not bring the case outside the ambit of the Warsaw Convention. Respondent, in seeking remedies from the trial court through special appearance of counsel, is not deemed to have voluntarily submitted itself to the jurisdiction of the trial court. Petitioner argues that respondent has effectively submitted itself to the jurisdiction of the trial court when the latter stated in its Comment/Opposition to the Motion for Reconsideration that "Defendant [is at a loss] x x x how the plaintiff arrived at her erroneous impression that it is/was Euro-Philippines Airlines Services, Inc. that has been making a special appearance since x x x British Airways x x x has been clearly specifying in all the pleadings that it has filed with this Honorable Court that it is the one making a special appearance."44 In refuting the contention of petitioner, respondent cited La Naval Drug Corporation v. Court of Appeals45 where we held that even if a party

"challenges the jurisdiction of the court over his person, as by reason of absence or defective service of summons, and he also invokes other grounds for the dismissal of the action under Rule 16, he is not deemed to be in estoppel or to have waived his objection to the jurisdiction over his person." 46 This issue has been squarely passed upon in the recent case of Garcia v. Sandiganbayan,47 where we reiterated our ruling in La Naval Drug Corporation v. Court of Appeals48 and elucidated thus: Special Appearance to Question a Court’s Jurisdiction Is Not Voluntary Appearance The second sentence of Sec. 20, Rule 14 of the Revised Rules of Civil Procedure clearly provides: Sec. 20. Voluntary appearance. – The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Thus, a defendant who files a motion to dismiss, assailing the jurisdiction of the court over his person, together with other grounds raised therein, is not deemed to have appeared voluntarily before the court. What the rule on voluntary appearance – the first sentence of the above-quoted rule – means is that the voluntary appearance of the defendant in court is without qualification, in which case he is deemed to have waived his defense of lack of jurisdiction over his person due to improper service of summons. The pleadings filed by petitioner in the subject forfeiture cases, however, do not show that she voluntarily appeared without qualification. Petitioner filed the following pleadings in Forfeiture I: (a) motion to dismiss; (b) motion for reconsideration and/or to admit answer; (c) second motion for reconsideration; (d) motion to consolidate forfeiture case with plunder case; and (e) motion to dismiss and/or to quash Forfeiture I. And in Forfeiture II: (a) motion to dismiss and/or to quash Forfeiture II; and (b) motion for partial reconsideration. The foregoing pleadings, particularly the motions to dismiss, were filed by petitioner solely for special appearance with the purpose of challenging the jurisdiction of the SB over her person and that of her three children. Petitioner asserts therein that SB did not acquire jurisdiction over her person and of her

three children for lack of valid service of summons through improvident substituted service of summons in both Forfeiture I and Forfeiture II. This stance the petitioner never abandoned when she filed her motions for reconsideration, even with a prayer to admit their attached Answer Ex Abundante Ad Cautelam dated January 22, 2005 setting forth affirmative defenses with a claim for damages. And the other subsequent pleadings, likewise, did not abandon her stance and defense of lack of jurisdiction due to improper substituted services of summons in the forfeiture cases. Evidently, from the foregoing Sec. 20, Rule 14 of the 1997 Revised Rules on Civil Procedure, petitioner and her sons did not voluntarily appear before the SB constitutive of or equivalent to service of summons. Moreover, the leading La Naval Drug Corp. v. Court of Appeals applies to the instant case. Said case elucidates the current view in our jurisdiction that a special appearance before the court––challenging its jurisdiction over the person through a motion to dismiss even if the movant invokes other grounds––is not tantamount to estoppel or a waiver by the movant of his objection to jurisdiction over his person; and such is not constitutive of a voluntary submission to the jurisdiction of the court.1avvphi1 Thus, it cannot be said that petitioner and her three children voluntarily appeared before the SB to cure the defective substituted services of summons. They are, therefore, not estopped from questioning the jurisdiction of the SB over their persons nor are they deemed to have waived such defense of lack of jurisdiction. Consequently, there being no valid substituted services of summons made, the SB did not acquire jurisdiction over the persons of petitioner and her children. And perforce, the proceedings in the subject forfeiture cases, insofar as petitioner and her three children are concerned, are null and void for lack of jurisdiction. (Emphasis supplied) In this case, the special appearance of the counsel of respondent in filing the Motion to Dismiss and other pleadings before the trial court cannot be deemed to be voluntary submission to the jurisdiction of the said trial court. We hence disagree with the contention of the petitioner and rule that there was no voluntary appearance before the trial court that could constitute estoppel or a waiver of respondent’s objection to jurisdiction over its person. WHEREFORE, the petition is DENIED. The October 14, 2005 Order of the Regional Trial Court of Makati City, Branch 132, dismissing the complaint for lack of jurisdiction, is AFFIRMED. SO ORDERED.

(2) Respondent voluntarily submitted to the jurisdiction of the trial court. Planters Development Bank v Chandumal (Civil Procedure) Planters Development Bank v Cha ndumal GR No. 195619, September 5,

Section 20, Rule 14 of the Rules of Court states "The defendant's voluntary appearance in the action shall be equivalent to service of summons" 2012

FACTS: BF Homes, Inc. and Chandumal entered into a contract to sell a parcel of land. BF Homes then sold to PDB all its rights and interests over the contract. On June 18, 1999, an action for judicial confirmation of notarial rescission and delivery of possession was filed by PDP against Chandumal. Consequently, summons was issued. According to the Sheriff's return, Sheriff Galing attempted to personally serve the summons upon Chandumal on three dates but it was unavailing as she was always out of the house on said dates. Hence, the sheriff caused substituted service of summons by serving the same through Chandumal's mother who acknowledged receipt thereof. For her failure to file within the prescribed period, PDB filed an ex parte motion to declare Chandumal in default which was granted by the RTC. On February 23, 2001, Chandumal filed an Urgent Motion to Set Aside Order of Default maintaining that she did not receive the summons and/or was not notified of the same. RTC denied Chandumal's motion which was reversed by the Court of Appeals due to invalid and ineffective substituted service of summons. ISSUES: (1) Whether there was valid substituted service of summons (2) Whether Chandumal voluntarily submitted to the jurisdiction of the trial court (3) Whether there was proper rescission by notarial act of the contract to sell HELD: (1) There

was

no

valid

substitute

service

of

summons.

The Return of Summons does not specifically show or indicate in detail the actual exertion of efforts or any positive step taken by the officer or process server in attempting to serve the summons personally to the defendant. The return merely states the alleged whereabouts of the defendant without indicating that such information was verified from a person who had knowledge thereof.

(3) There is no valid rescission of the contract to sell by notarial act. The allegation that Chandumal made herself unavailable for payment is not an excuse as the twin requirements for a valid and effective cancellation under the law, i.e. notice of cancellation or demand for rescission by a notarial act and the full payment of the cash surrender value, is mandatory.