G.R. No. 120972 July 19, 1999
SPOUSES JOSE and EVANGELINE AGUILAR, SPS. DOMINGO and SIXTA AGUILAR, AMBROSIO DELOS REYES, and SPS. FRANCISCO DELOS REYES, EMILIA MERCADO REYES, SPS. JOSE and ROSA Y VILLARAMA, RUBY IBANEZ, MAGNO MANALO and VALENTINO MAGSARILI, petitioners,
vs.
HON, COURT OF APPEALS, SAN MIGUEL CORPORATION, PAZ G. PALANCA and ROMEO REYES, Clerk of Court and Ex-Officio Sheriff and Deputy Sheriff In-Charge, respectively, of the Regional Trial Court, National Capital Judicial Region, Caloocan City, Metro Manila; ESPERANZA T. ECHIVERRI and FERNANDO G. CRUZ, Clerk of Court and Ex-Officio Sheriff and Deputy Sheriff In-Charge, respectively, of the Regional Trial Court, National Capital judicial Region, Valenzuela, Metro Manila; JOSE R. ORTIZ, JR. and HECTOR L. GALURA, Clerk of Court, and Ex-Officio Sheriff and Deputy Sheriff In-Charge, respectively, of the Regional Trial Court, National Capital Judicial Region, Pasay City, Metro Manila; PIO Z. MARTINEZ and NICANOR D. BLANCO, Ex-Officio Sheriff and Deputy Sheriff In-Charge, respectively, of the Regional Trial Court, Fourth Judicial Regional, Antipolo, Rizal, respondents.
R E S O L U T I O N
KAPUNAN, J.:
On July 25, 1995, petitioners Spouses Jose and Evangeline Aguilar, et al., through petitioner Jose Aguilar, filed a Motion for Extension of Time seeking thirty (30) days from July 26, 1995 to file a petition for review on certiorari assailing the Court of Appeals' Decision dated September 30, 1994 in CA-G.R. CV No. 40901 and Resolution dated February 2, 1995 denying their motion for reconsideration. Petitioners alleged that they received a copy of the February 2, 1995 Resolution on July 11, 1995 "upon follow ups." 1
Private respondent San Miguel Corporation opposed the motion alleging that the decision petitioners sought to elevate for review to this Court attained finality on March 29, 1995, with entry of judgment made by the Court of Appeals on May 5, 1995. 2
The petition was filed with this Court on August 25, 1995. In its comment, private respondent reiterated that the disputed decision of the Honorable Court of Appeals can no longer be reviewed as the same had become final and executory. 3
In our Resolution dated October 5, 1998, we required petitioners to submit to this Court the name and address of their counsel within ten (10) days from notice. In a Motion dated November 6, 1998, petitioners asked for "at least thirty (30) days within which to find a Lawyer to assist [them]." 4
We granted petitioner's motion in a Resolution dated February 10, 1999 and gave them "an extension of thirty (30) days from the expiration of the original period within which to submit the name and address of counsel." 5 Until the time of the promulgation of this resolution, however, petitioner has not complied with the February 10, 1999 Resolution.
The Court of Appeals rollo reveals that a copy of the February 2, 1995 Resolution was sent on February 7, 1995 to petitioners' counsel of record, Atty. Almario T. Amador, through registered mail, at his address appearing on record. The envelope containing the resolution was, however, returned to sender Court of Appeals stamped "unclaimed." On the envelope also appears stamped boxes with notations "second notice/2-13" and "third notice/2-14." 6
A copy of the resolution was then sent on March 2, 1995 to Jose Aguilar, one of the parties, at his address appearing on record. The mail was, however, returned to the Court of Appeals with the annotation "moved." 7
Subsequently, on May 5, 1995, the Decision dated September 30, 1994 was entered in the Book of Judgments of the court of Appeals "per Sec. 8, Rule 13, Revised Rules of Court." 8
The issue to be resolved is whether service upon Atty. Amador, petitioners' counsel of record at the appellate court, and upon petitioner Jose Aguilar may be deemed complete, so that entry of judgment was duly made.
Petitioners allege receipt of the assailed decision on July 11, 1995. Their motion for extension of time was filed on July 25, 1995.
§8, Rule 13 of the Revised Rules of Court 9 provides thus:
Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the post master, service shall take effect at the expiration of such time.
The general rule is that service by registered mail is complete upon actual receipt thereof by the addressee. The exception is where the addressee does not claim his mail within five (5) days from the date of the first notice of the postmaster, in which case the service takes effect upon the expiration of such period.
Inasmuch as the exception only refers to constructive and not actual service, such exception must be applied upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. 10 Not only is it required that notice of the registered mail be sent but that it should also be delivered to and received by the addressee. 11 Notably, the presumption that official duty has been regularly performed is not applicable in the situation. It is incumbent upon a party who relies on constructive service or who contends that his adversary was served with a copy of a final order or judgment upon the expiration of five days from the first notice of registered mail sent by the postmaster to prove that the first notice was sent and delivered to the addressee. 12
The best evidence to prove that notice was sent would be a certification from the postmaster, who should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. 13 The mailman may also testify that the notice was actually delivered. 14
In Barrameda v. Castillo, 15 we again faulted the trial court for applying the presumption as to constructive service "literally and rigidly," and for failing to require the adverse party to present the postmaster's certification that a first notice was sent to opposing party's counsel and that notice was received. The envelope containing the unclaimed mail was presented in court. On its face, the envelope bore the notation "Returned to sender. Reason: Unclaimed." On the back-side of the envelope bore the legend "City of San Pablo, Philippines, Jan. 29, 1966" with the dates "2-3-66 and 2-9-66," and "R to S, notified 3/3/66." We stated that the mere exhibition in court of the envelope containing the unclaimed mail is not sufficient proof that a first notice was sent.
In De la Cruz v. De la Cruz, 16 we held as error the trial court's mere reliance on the notations on the envelope of the returned order consisting of " R & S", "unclaimed" and the stamped box with the wordings "2nd notice" and "last notice" indicating that the registered mail was returned to sender because it was unclaimed in spite of the notices sent by the postmaster to the addressee. No other proof of actual receipt of the first notice was presented in court.
In another case, Johnson & Johnson (Phils.), Inc. v. Court of Appeals, 17 petitioners assailed the following resolution of the appellate court:
Considering that the copy of the resolution dated November 29, 1990 served upon counsel for respondent was returned unclaimed on January 3, 1991, and afterwards the same copy sent to the private respondent itself at given address was likewise returned unclaimed on February 28, 1991, the Court RESOLVED to DECLARE service of the said resolution upon the private respondent complete as of February 28, 1991, pursuant to Sec. 8, Rule 13, Rules of Court.
We held that the Court of Appeals erred in ruling that therein petitioner had been duly served with a copy of the assailed resolution, as there was utter lack of sufficient evidence to support the appellate court's conclusion. Nothing in the records showed how, when, and to whom the delivery of the registry notices of the registered mail addressed to petitioner was made and whether said notices were received by the petitioner. The envelope containing the unclaimed mail merely bore the notation "return to sender: unclaimed" on its face and "Return to: Court of Appeals" at the back. We concluded that the respondent court should not have relied solely on these notations to support the presumption of constructive service, and accordingly, we set aside the questioned resolution and ordered the appellate court to properly serve the same on therein petitioner.1âwphi1.nęt
In the instant case, in the Court of Appeals rollo there is no postmaster's certification to the effect that the registered mail was unclaimed by the addressee Atty. Amador and thus returned to sender, after first notice was sent to and received by addressee on a specified date. Thus, there is no conclusive proof that notice was sent to Atty. Amador and actually received by him. Absent such proof, the disputable presumption of completeness of service does not arise as to the registered mail addressed to Atty. Amador.
However, even absent proof of completeness of service upon Atty. Amador, we must rule that service upon petitioner Jose Aguilar himself was complete.
Jurisprudence provides that when a party is represented by counsel, notice should be made upon the counsel of record at his given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and adequate notice to the court of a change of address, 18 unless service upon the party himself is by court order. 19 This doctrine is founded on §2, Rule 13 of the Revised Rules of Court 20 which provides thus:
Papers to be filed and served. — Every order required by its terms to be served, every pleading subsequent to the complaint, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected thereby. If any of such parties has appeared by an attorney or attorneys, service upon him shall be made upon his attorneys or one of them unless service upon the party himself is ordered by the court. Where one attorney appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (Emphasis supplied.)
The mailing of a copy of the February 2, 1994 Resolution to Jose Aguilar was effected by the Court of Appeals, 21 after the resolution could not be served upon Atty. Almario. It is not disputed that the mail was sent to the address of Mr. Aguilar on record, but that the mail was returned to the appellate court with the annotation "moved." 22
Notably, petitioners admit that after the preparation and filing of their rejoinder before the appellate court, Atty. Almario took ill and could no longer discharge his functions as their counsel. 23 Yet, Atty. Almario, at his address on record, received a copy of the appellate court's decision. 24 Subsequently, it was Mr. Aguilar himself who signed the motion for reconsideration. 25 Knowing fully well that Atty. Almario may not be physically up to acting on any pleading, and petitioners having taken over the "following up" of the case, it was petitioners and their counsel's responsibility to devise a system for the receipt of mail intended for them. 26
To rule otherwise considering the circumstances in the instant case would be to negate the purpose of the rule on completeness of service, which is to place the date of receipt of pleadings, judgments and processes beyond the power of the party being served to determine at his pleasure. The finality of a decision is a jurisdictional event which cannot be made to depend on the convenience of a party. 27
ACCORDINGLY, the Court Resolved to DENY the petition, the decision of the Court of Appeals in CA-G.R. CV No. 40901 having already been entered in the Book of Judgments of the Court of Appeals on May 5, 1995.1âwphi1.nęt
SO ORDERED.
Davide, Jr., C.J., Melo, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 Rollo p; 4.
2 Id., at 9. See Court of Appeals rollo, p. 296.
3 Id., at 124.
4 Id., at 178.
5 Id., at 181.
6 Court of Appeals rollo, pp. 288-290.
7 Id., at 294.
8 Id., at 296.
9 Now §10, Rule 13 of the 1997 Rules of Civil Procedure.
10 Johnson & Johnson (Phils.) Inc. v. Court of Appeals, 201 SCRA 768 (1991).
11 De la Cruz v. De la Cruz, 160 SCRA 361 (1988), cited in Vill Transport Services, Inc. v. Court of Appeals, 193 SCRA 25 (1991). In Vill Transport, the Court ruled that where the element of negligence is present — where counsel failed to inform the court of a change in address — the rule in De la Cruz is inapplicable.
12 Barrameda v. Castillo, 78 SCRA 1 (1977), cited in Jesus G. Santos v. Court of Appeals, et al., G.R. No. 128061, September 3, 1998.
13 Barrameda v. Castillo, supra, citing Hernandez v. Navarro, 48 SCRA 44 (1972).
14 Barrameda v. Castillo, supra, cited in Johnson & Johnson v. Court of Appeals, supra.
15 See note 12.
16 See note 11.
17 See note 10.
18 Magno v. Court of Appeals, 152 SCRA 555 (1987), citing Cubar v. Mendoza, 120 SCRA 768 (1983). Also Lee v. Romillo, Jr., 161 SCRA 589 (1988).
19 Riego v. Riego, 18 SCRA 91 (1966); Ongisako v. Natividad, 79 Phil. 3 (1947); Notor v. Daza, 76 Phil. 850 (1952). See Tanpinco v. Lozada, 4 SCRA 338 (1962).
20 NOW §2, Rule 13 of the 1997 Rules of Procedure.
21 CA Rollo, p. 291.
22 Id., at 294.
23 Rollo, p. 161.
24 CA Rollo, p. 245.
25 Id., at 266.
26 NIA Consult, Inc. v. National Labor Relations Commission, 266 SCRA 17 (1997), citing cases.
27 Ibid.
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