Curing improper service of summons

In affirming the order of the trial court, the Court of Appeals said that notice receipt by his counsel is and should be considered as receipt by him

A wife filed a petition for temporary and permanent protection orders, support and support pendente lite against her husband. She invoked the provisions of Republic Act 9262 or the Violence Against Women and Children Act. The trial court issued on 22 October 2012 a TPO, or temporary protection order, against the husband.

The court sheriff attempted to serve the summons, petition and order on the husband. He tried his residence and office but to no avail. In November of the said year, a lawyer who represented the husband in another case and in a different branch of the court obtained a copy of the order and the petition. Apparently, because of this, the husband opposed the issuance of the order the following year, on 17 January 2013.

The trial court denied admission of the husband’s opposition stating that it was filed out of time. Instead of filing it within five days from receipt of the order in November 2012, the husband filed it only two months later in 2013. When the husband brought the matter to the Court of Appeals, he argued there was improper service of summons.

This means that the service of summons, which is a mode for the court to acquire jurisdiction over the defendant, was not performed correctly. And because of this technicality, any order should not bind him and proceedings without his participation should be invalidated. The husband failed to persuade the appellate court.

In affirming the order of the trial court, the Court of Appeals said that notice receipt by his counsel is and should be considered as receipt by him. Thus, the service of summons was proper.

Undaunted, the husband brought the matter before the Supreme Court. In resolving the issue, the Highest Court did find that there was improper service of summons. It decreed that “clearly, jurisdiction over the person of the respondent in a petition for TPO/PPO under RA 9262 can be acquired through any of the means of serving summons under the Rules of Court. Notably, none of these modes of service were resorted to by Tina. While the CA is correct in quoting GCP-Manny Transport Services Inc. v. Prinsipe that notice to counsel is equivalent to notice to the client, the very same case also states that it is a notice to counsel of record which is binding upon the client.”

Further, the SC said: “In the case at hand, Atty. Palermo was Jay’s counsel in a separate criminal case filed against the latter for violation of RA 9262 pending at that time before Branch 140 of the RTC of Makati. Therefore, Jay had no counsel of record yet with Branch 136 of the RTC of Makati at the time Atty. Palermo received the copy of the order and TPO. Granting arguendo that Jay knew of the pending TPO case against him, whether through Atty. Palermo or another person, the requirement of summons cannot be dispensed with. Jurisdiction over the person of the defendant cannot be acquired notwithstanding his knowledge of the pendency of a case against him, unless he was validly served with summons. Thus, service the order and TPO to Atty. Palermo cannot be considered a valid service of summons.”

Despite this, the Supreme Court still did not side with the husband. It added that “we note that Jay voluntarily submitted himself to the jurisdiction of the trial court when he filed his Entry of Appearance with Opposition to the Issuance of the Permanent Protection Order on 17 January 2013. By seeking affirmative relief in his opposition without objecting to the jurisdiction of the trial court, he thereby voluntarily submitted to its jurisdiction. In effect, this cured the invalid service of summons. When a party appears before the court without qualification, he or she is deemed to have waived his or her objection regarding lack of jurisdiction due to improper service of summons.”

“When a defendant, however, appears before the court for a specific purpose of questioning the court’s jurisdiction over him or her, this is a special appearance and does not vest the court with jurisdiction. Clearly, the trial court acquired jurisdiction over Jay through his voluntary appearance when he sought the lifting of the TPO and the denial of the issuance of PPO in his opposition, without raising the issue of lack of jurisdiction over his person. By such conduct, he can no longer subsequently object to the court’s jurisdiction,” the SC said.

The facts and citation are from Jay V. Sabado v. Tina Marie L. Sabado, for herself and her minor children (G.R. 214270 promulgated on 12 May 2021.)

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