Republic of the Philippines

REGIONAL TRIAL COURT

9th Judicial Region
Branch 15
Zamboanga City
TINA W. DICAPRIO,
Plaintiff,

CIVIL CASE NO.

-versusJUSTINE R. DICAPRIO
Defendant.
x----------------------------------x

129908

-forDECLARATION OF NULLITY
OF MARRIAGE WITH SUPPORT

OPPOSITION TO THE MOTION TO DISMISS

Plaintiff, through her Counsel, states that;
1. On February 9, 2015, the defendant, through his
counsel, file a motion to dismiss base on the ground of:
a. The Court has no Jurisdiction over the person of
the defendant, there being improper service of
summons.
2. Upon a thorough review of defendants averments,
plaintiff respectfully submits that said Motion to Dismiss
is bereft of merit.
II
DICUSSION
A. LACK OF JURISDICTION OVER THE PERSON OF THE
DEFENDANT
3. It appears that the defendants, erred in stating that a
service of summons to the defendant, according to the
record obtain by the plaintiff, through her counsel it
shows that on January 15 2015, a service of summons
was sent to the residence of the defendant , by the
Court process server, Jack E. Chan.
4. On February 3 2015, Mr. Chan stated in his Return of
Summons report that:
THIS IS TO CERTIFY that on January 20 2015, the
undersigned caused the service of summons
together with a copy of the complaint with its
annexes to defendant Justine Dicaprio at his given
address at Brgy Camino Nuevo, Nunez Extension,
Zamboanga City, as per information given by an
old lady in her mid 60s who is also residing at the

said address, and introduced herself as the

mother of the defendant, and said to me that
the defendant is not around at that time. On
the 23rd day of January 2015, I returned to the
same place to serve the summons and repeat this
on the 26th, 27th, 28th, 29th, and the 30th of the
said month. On the 2nd day of February again I
return to the defendants residence to see if he is
there and to served the summons and the copy of
the complaint with its annexes and when I called
out the defendants name at the premises of their
residence, again the mother of the defendant
(The same old lady I met on January 20, 23,
26, 27, 28, 29, 30 2015), showed up and
insist that the defendant her son is still not
here when I showed her again the summons
together with a copy of the complaint with
its annexes to the defendant. I explained to
her the importance of the summons I
brought with me but she refused to sign and
acknowledge receipt of the summons and
she refused to tell her name, and when
asked why she would not receive the
summons and tell her name she replied with
a loud voice umalis na kayo! Di ko raw yan
tatangapin sabe ni Justine kase kalokohan
lang yan! Distorbo kayo! With me who can
attest to the said incident is Mr. Brandon Lee, who
was with me at that time. (emphasis supplied)
(Annex A to A1)
5. Upon receiving this report of Mr. Chan, by request of the
plaintiff, through her counsel, from the records of the
Honorable Court, the Plaintiff through his counsel file a
Motion to Serve Summons by Substituted Service to
this Honourable (in accordance of Sec 7, of Rule 14
of the 1997 Rules of Court) court stated the
following:
COMES NOW, the plaintiff, through the
undersigned counsel and unto this Honourable Court,
most respectfully avers:
1. That on January 20, 2015, copy of the summons
was served to the process server of this
Honorable Court, but it cannot be served to the
defendant personally as evidence by the
Report of the process server;
2. The considering that personal service
cannot be effected, it is most respectfully
move to that summons be served through
substituted
service.
(emphasis
supplied)
(Annex B to B1)

6. The Plaintiff, through her counsel, followed the strictly

the provisions on Sec 6 and 7 of Rule 14 of the
1997 Rules of Court, upon the utmost diligence as is
needed to this rules, and to attest this show of diligence
the Plaintiff, through her counsel immediately file a
Motion to Serve Summons by Substituted Service
four (4) days after the receipt of the Report of
Summons Return to this Honorable Court. The
Plaintiff, through her counsel obtain these records from
this Honorable Court through good faith.
7. Upon
these
statements
and
their
supporting
documentary evidences (as Annexes A to A1 and B
to B1) the defendant could not sustain their
statement that a summons was not served to his
residence as it clearly shows on the record of this
Honorable Court, and Wherefore the Plaintiff,
through her counsel, respectfully prayed that
defendants Motion to Dismiss be denied and the
case be set for trial. All other reliefs, just and
equitable under the premises, are likewise
prayed for.
By:

ROBERT C. ANTONIO JR.

Counsel for the Plaintiff
Sagrada Famlia Village,
Camino Nuevo, Nunez
Extention, Zamboanga
City
Roll No. 26589
IBP O.R. No. 024598 518-17 Zamboanga City
Chapter

Copy furnished:
Atty. Jhonelle Galvez
Counsel for the Defendant
Zamboanga City.

By:_______________
Date:_____________

Atty. Katty Perry

Prosecutor II
Zamboanga CIty

By:________________
Date:______________

NOTICE OF HEARING
THE CLERK OF COURT
Regional Trial Court Branch 15
9th Judicial Region
Zamboanga City
GREETINGS:
Please submit the foregoing OPPOSITION to the MOTION TO DISMISS
for the consideration and approval of the Honorable Court immediately upon
receipt hereof sans oral arguments.
Thank you for your kind attention.
February 15, 2015, Zamboanga City, Philippines.

ROBERT C. ANTONIO JR.

Counsel
--oOo-NOTICE OF HEARING
ATTY. JHONELLE GALVEZ
Counsel for Defendant
Zamboanga City
GREETINGS:
Kindly take NOTICE that the undersigned will submit the foregoing
OPPOSITION to the MOTION TO DISMISS for the consideration and approval of
the Honorable Court immediately upon receipt thereof sans oral arguments.
Thank you for your kind attention.
February 15, 2014, Zamboanga City, Philippines.

ROBERT C. ANTONIO JR.

Counsel