JOSE BARITUA,
          Petitioner,

HON. COURT OF APPEALS [ELEVENTH DIVISION],
HON.   MANUEL   D.  VICTORIO, Judge, RTC, Br. 53,
Rosales    -   Pangasinan,   and  ROY   R.   DOMINGO,
represented     by    his    Attorney-in-Fact, CRISPIN
A. DOMINGO,
                                                                             Respondents.
 

1. He is a Filipino, of legal age, married and a resident of Poblacion, Resales, Pangasinan before he went to the United States where he now lives at 4525 Leata Lane, La Cantada LA 91011. He is being represented by his attorney-in-fact Crispin A. Domingo, a Filipino, of legal age, married and  resident of No. 47 Yale St., Cubao, Quezon City. Defendant is also a Filipino, of legal age, married and doing business under the business name "J.B. Bus Lines" with business address at Tramo Street, Pasay City where said defendant could be served summons.[1]

The Court of Appeals affirmed the trial court.[3] Hence this petition for certiorari and prohibition.

Petitioner claims that:
 

A complaint for damages is a personal action. In cases filed before the Regional Trial Court, the venue for personal actions is laid down in Section 2 [b] of Rule 4 of the Revised Rules of Court which reads as follows :

Sec. 2. Venue in Courts of First Instance.-

xxx   xxx   xxx

(b) Personal actions.-  All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.

xxx   xxx   xxx[5]

Section 2 [b] of Rule 4 speaks of the place where the defendant or the plaintiff "resides." We have held that the residence of a person must be his personal, actual or physical habitation or his actual residence or abode.[7] It does not mean fixed permanent residence to which when absent, one has the intention of returning. The word "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence" or "domicile."[8] Actual residence may in some cases be the legal residence or domicile, but for purposes of venue, actual residence is the place of abode and not necessarily legal residence or domicile.[9] Actual residence signifies personal residence, i.e., physical presence and actual stay thereat.[10] This physical presence, nonetheless, must be more than temporary and must be with continuity and consistency.[11]

The question in this case is whether private respondent had his actual residence in Rosales, Pangasinan or in Los, Angeles, California at the time the complaint was filed before the Regional Trial Court of Resales, Pangasinan.

It is undisputed that private respondent left for the United States on April 25, 1988 before the complaint was filed on June 26, 1989.[12] This fact is expressly admitted in the complaint itself where private respondent states that he "is [sic] a resident of Poblacion Rosales, Pangasinan before he went to the United States where he now lives in 4525 Leata Lane, La Cantada, LA 91011." Furthermore, the special power of attorney in favor of Crispin A. Domingo was drawn and executed by private respondent on February 18, 1988 before the Philippine Consul in Los Angeles, California.[13] In said special power of attorney, private respondent declared that he was a resident of Los Angeles, California.[14]

Private respondent was not a mere transient or occasional resident of the United States. He fixed his place of abode in Los Angeles, California and stayed there continuously and consistently for over a year at the time the complaint was filed in Rosales, Pangasinan.[15]

Contrary to the lower courts' finding, the temporary nature of private respondent's "working non-immigrant" visa did not make him a non-resident of the United States. There is no showing as to the date his temporary employment in the United States ended.[16] There is likewise no showing, much less any allegation, that after the filing of the complaint, private respondent actually returned to the Philippines and resumed residence in Rosales, Pangasinan. In fact, petitioner's claim that private respondent resided in the United States continuously and consistently since 1988 until the present has not been refuted.[17]

We previously held that:

We are fully convinced that private respondent Coloma's protestations of domicile in San Nicolas, Ilocos Norte, based on his manifested intention to return there after the retirement of his wife from government service to justify his bringing of an action for damages against petitioner in the CFI of Ilocos Norte, is entirely of no moment since what is of paramount importance is where he actually resided or where he may be found at the time he brought the action, to comply substantially with the requirements of Sec. 2[b] of Rule 4, Rules of Court, on venue of personal actions.[18]

When the complaint was filed in Rosales, Pangasinan, not one of the parties was a resident of the town. Private respondent was a resident of Los Angeles, California while his attorney-in-fact was a resident of Cubao, Quezon City. Petitioner's "business address" according to private respondent is in Pasay City,[22] although petitioner claims he resides in Gubat, Sorsogon.[23] The venue in Rosales, Pangasinan was indeed improperly laid.

IN VIEW WHEREOF, the petition is granted and the decision of the Court of Appeals in CA-G. R. SP No. 20737 is reversed and set aside. The complaint in Civil Case No. 915-R is dismissed for improper venue. No costs.

SO ORDERED.

Regalado, Romero and Torres, Jr., JJ., concur.
Mendoza, J., took no part.

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Endnotes