EDUARDO M. COJUANGCO, JR., complainant, vs. ATTY. LEO J.

PALMA, respondent.

R E S O L U T I O N

PER CURIAM p:

Providing one's children with a comfortable life and good education does not render marriage

a fait accompli. Leo J. Palma, respondent herein, may have provided well for his children but

this accomplishment is not sufficient to wipe away the penalty for his transgression. He ought

to remember that before he became a father, he was a husband first. As such, he should have

loved, respected and remained faithful to his wife.

At bar is respondent's Motion to Vacate our Decision dated September 15, 2004 finding him

guilty of grossly immoral conduct and violation of his oath as a lawyer and imposing upon him

the penalty of disbarment from the practice of law.

In resolving the instant motion, a brief revisit of the facts is imperative. On June 22, 1982,

respondent, despite his subsisting marriage with Elizabeth Hermosisima, married Maria Luisa

Cojuangco, the 22-year old daughter of complainant Eduardo M. Cojuangco, Jr. This prompted

the latter to file with this Court, on November 8, 1982, a complaint for disbarment against

respondent.

Respondent moved to dismiss the complaint.

In our Resolution dated March 2, 1983, we referred the case to the Office of the Solicitor

General (OSG) for investigation, report and recommendation. Then Assistant Solicitor General

Oswaldo D. Agcaoili heard the testimonies of the complainant and his witness in the presence

of respondent's counsel.

On March 19, 1984, respondent filed with the OSG an urgent motion to suspend

proceedings on the ground that the final outcome of Civil Case No. Pq-0401-P, for declaration

of nullity of marriage between him and his wife Lisa, poses a prejudicial question to the

disbarment proceeding. The motion was denied.

Respondent then filed with this Court an urgent motion for issuance of a restraining

order. On December 19, 1984, we issued a Resolution enjoining the OSG from continuing the

disbarment proceedings.

In the interim, Rule 139-B of the Rules of Court took effect. Hence, the OSG transferred the

disbarment case to the Integrated Bar of the Philippines (IBP). On October 19, 1998, IBP

Commissioner Julio C. Elamparo required the parties to manifest within ten (10) days from

notice whether they are still interested in pursuing the case. 7

In his manifestation, complainant confirmed his continuing interest in prosecuting the case.

For his part, respondent moved to postpone the hearing eight (8) times. In one of those

instances, particularly on August 28, 2001, complainant moved "that respondent be deemed to

have waived his right to present evidence and for the case to be deemed submitted for

resolution in view of his continuing failure to present his evidence." However, complainant

withdrew such motion upon the promise of the respondent's counsel that on the next hearing,

scheduled on October 4, 2001, he would definitely present his client's evidence. But even

before that date, respondent already manifested that he would not be able to return to the

Philippines for his direct testimony. Instead, he promised to submit his "direct testimony in

affidavit form". In an Order issued that day, the IBP Commissioner reset the hearing for the last

time on January 24, 2002 and warned respondent that should he fail to appear or present his

"direct testimony in affidavit form," the case will be deemed submitted for resolution. 10 On

January 24, 2002, respondent neither appeared nor presented his "direct testimony in affidavit

form," hence, the case was deemed submitted for resolution.

On March 20, 2003, the IBP Commissioner submitted a Report and Recommendation finding

respondent guilty of gross immoral conduct and violation of his oath as a lawyer and

recommending that he be suspended from the practice of law for a period of three (3)

years. cHTCaI

The IBP Board of Governors adopted and approved the above Report and Recommendation,

but reduced the penalty of suspension to only one (1) year.

On September 15, 2004, we rendered the assailed Decision.

In his motion for reconsideration, respondent raised the following issues:

First, the complaint for disbarment was filed by an improper party,

complainant not being the offended party.

Second, he was denied due process because the case was submitted for

resolution on January 24, 2002 without his "direct testimony in affidavit

form."

Third, the disbarment proceedings before the IBP Commission on Bar

Discipline is void because our Resolution dated December 19, 1984

restraining the OSG from continuing such proceedings has not been lifted.

Fourth, our Decision is barred by laches because of the lapse of almost

fourteen (14) years from December 19, 1984, the date we restrained the OSG

from continuing the disbarment proceedings, until October 19, 1998, the date

the IBP Commissioner required the parties to "manifest whether or not they

are still interested in prosecuting the case."

Fifth, the Resolution dated June 21, 2003 of the IBP Board of Governors

imposing upon him the penalty of one (1) year suspension "has attained

finality and should be deemed served already."

And sixth, he acted under a "firm factual and legal conviction" in declaring

before the Hong Kong Marriage Registry that he is a "bachelor" because his

first marriage is void even if there is no judicial declaration of nullity. IaDcTC

In his comment, complainant countered that: first, respondent cannot claim denial of due

process because his failure to adduce evidence was due to his own fault;second, it is now too

late to invoke this Court's Resolution of December 19, 1984 restraining the OSG from

continuing the disbarment proceedings; third, laches does not apply because the 14-year hiatus

was brought about by the said Resolution; fourth, the penalty of one-year suspension imposed

by the IBP Board of Governors cannot be deemed "final and served already" because it is a

mere recommendation to this Court; and fifth, although his previous marriage was annulled, it

can not erase the betrayal of trust and abuse of confidence he committed against complainant.

Respondent's motion is bereft of merit.

We observe that in his motion, respondent alleged new issues which were not considered

below. Nonetheless, in view of the caveat that the power to disbar must be exercised with great

caution, we shall resolve all these new issues.

I

Improper Party

We find no merit in respondent's contention that the complainant, being the father of the

offended party, does not have the standing to file the instant complaint.

Disbarment proceedings are undertaken solely for public welfare. The only question for

determination is whether respondent is fit to be a member of the Bar. The complainant or the

person who called the attention of this Court to the lawyer's alleged misconduct is in no sense a

party and generally has no interest in the outcome except as all good citizens may have in the

proper administration of justice. Thus, this Court may investigate charges against lawyers,

regardless of complainant's standing. In fact, it can do so motu proprio. Our ruling in Rayos-

Ombac vs. Rayos applies four-square, thus:

". . . A case of suspension or disbarment may proceed regardless of interest or

lack of interest of the complainant. What matters is whether, on the basis of

the facts borne out by the record, the charge of deceit and grossly immoral

conduct has been duly proven. This rule is premised on the nature of

disciplinary proceedings. A proceeding for suspension or disbarment is not in

any sense a civil action where the complainant is a plaintiff and the respondent

lawyer is a defendant. Disciplinary proceedings involve no private interest and

afford no redress for private grievance. They are undertaken and prosecuted

solely for the public welfare. They are undertaken for the purpose of

preserving courts of justice from the official ministration of persons unfit to

practice in them. The attorney is called to answer to the court for his conduct

as an officer of the court. The complainant or the person who called the

attention of the court to the attorney's alleged misconduct is in no sense a

party, and has generally no interest in the outcome except as all good citizens

may have in the proper administration of justice. Hence, if the evidence on

record warrants, the respondent may be suspended or disbarred despite the

desistance of complainant or his withdrawal of the charges."

Due Process

Neither do we find merit in respondent's claim that the IBP Commission on Bar Discipline

violated his right to due process when it considered the case submitted for resolution on

January 24, 2002 without his "direct testimony in affidavit form." The records show that the

case dragged on for three (3) years after the IBP Commission on Bar Discipline resumed its

investigation on October 19, 1998. Of the fifteen (15) settings from February 2, 1999 to

January 24, 2002, respondent had the hearing postponed for eight (8) times.

Indisputably, it was respondent's failure to submit his "direct testimony in affidavit form" that

caused delay. Since the proceedings had been dragging on a lethargic course, the IBP

Commissioner is correct in considering the case submitted for resolution. At this juncture, it

must be stressed that the essence of due process in administrative proceedings is the

opportunity to explain one's side or seek a reconsideration of the action or ruling complained

of. As long as the parties are given the opportunity to be heard before judgment is rendered, the

demands of due process are sufficiently met. Here, respondent was given sufficient

opportunity to explain his side and adduce his evidence. Despite his sudden "flight into

oblivion," the IBP Commissioner notified him of the proceedings. Significantly, he was duly

represented by a counsel who attended the hearings and submitted manifestations and motions

on his behalf, the latest of which is the instant Motion to Vacate. In short, the active

participation of his lawyer in every stage of the proceedings rules out any badge of procedural

deficiency therein. Of course, we need not mention the fact that respondent was able to file

with this Court a motion to dismiss the complaint, as well as to confront and cross-examine the

complainant and his witness during the investigation in the OSG.

III

Restraining Order

The restraining order was anchored on the ground that the final outcome of Civil Case No. Pq-

0401-P poses a prejudicial question to the disbarment proceedings. It appears from

complainant's allegation, which respondent does not deny, that Civil Case No. Pq-0401-P was

dismissed without prejudice. 17 Necessarily, there is no more prejudicial question to speak

of. THIcCA

IV

Laches

Respondent cannot find solace in the principle of laches. While it is true that there was a hiatus

or delay of 14 years before the IBP Commissioner resumed the investigation, the same was

pursuant to the said restraining order of December 19, 1984.

V

Finality of the Penalty Imposed

by the IBP-Board of Governors

The penalty of one-year suspension imposed by the IBP Board of Governors cannot attain

finality. Section 12 of Rule 139-B provides:

"Section 12.Review and Decision by the Board of Governors. —

xxx xxx xxx

(b)If the Board, by the vote of a majority of its total membership, determines

that the respondent should be suspended from the practice of law or disbarred,

it shall issue a resolution setting forth its findings and recommendations

which, together with the whole record of the case shall forthwith be

transmitted to the Supreme Court for final action."

Clearly, the resolution of the IBP Board of Governors is merely recommendatory. The "power

to recommend" includes the power to give "advice, exhortation or indorsement, which is

essentially persuasive in character, not binding upon the party to whom it is

made." Necessarily, the "final action" on the resolution of the IBP Board of Governors still lies

with this Court. Obviously, respondents argument that we affirmed such resolution when we

"noted" it is certainly misplaced. In Re: Problem of Delays in Cases Before the

Sandiganbayan, we held that the term "noted" means that the Court has merely taken

cognizance of the existence of an act or declaration, without exercising a judicious deliberation

or rendering a decision on the matter. It does not imply agreement or approval. The power to

disbar belongs to the Court alone.

VI

Good Faith

Respondent's argument that he was of the "firm factual and legal conviction when he declared

before the Hong Kong authorities that he was a bachelor since his first marriage is void and

does not need judicial declaration of nullity" cannot exonerate him. In Terre vs. Terre, the

same defense was raised by respondent lawyer whose disbarment was also sought. We held:

". . . Respondent Jordan Terre, being a lawyer, knew or should have known

that such an argument ran counter to the prevailing case law of this Court

which holds that for purposes of determining whether a person is legally free

to contract a second marriage, a judicial declaration that the first marriage was

null and void ab initio is essential. Even if we Were to assume, arguendo

merely, that Jordan Terre held that mistaken belief in good faith, the same

result will follow. For if we are to hold Jordan Terre to his own argument, his

first marriage to complainant Dorothy Terre must be deemed valid, with the

result that his second marriage must be regarded as bigamous and criminal in

character."

Before we write finis to this case, we find it necessary to stress certain points in view of

respondent's additional reason why he should be exonerated — that he loves all his children

and has always provided for them. He may have indeed provided well for his children. But this

accomplishment is not sufficient to show his moral fitness to continue being a member of the

noble profession of law. It has always been the duties of parents — e.g., to support, educate and

instruct their children according to right precepts and good example; and to give them love,

companionship and understanding, as well as moral and spiritual guidance. But what

respondent forgot is that he has also duties to his wife. As a husband, he is obliged to live with

her; observe mutual love, respect and fidelity; and render help and support. And most

important of all, he is obliged to remain faithful to her until death. AaEcHC

The undeniable truth is that respondent married Lisa while his marriage with Elizabeth

Hermosisima was still subsisting. Such act constitutes grossly immoral conduct, a ground for

disbarment under Section 27, Rule 138 of the Revised Rules of Court. Obviously, he exhibited

a deplorable lack of that degree of morality required of him as a member of the Bar. He made a

mockery of marriage, a sacred institution demanding respect and dignity. In Cordova vs.

Cordova, we held that "The moral delinquency that affects the fitness of a member of the bar

to continue as such includes conduct that outrages the generally accepted moral standards of the

community, conduct for instance, which makes a mockery of the inviolable social institution of

marriage."

We also reiterate our ruling that respondent's conduct speaks of a clear case of betrayal of trust

and abuse of confidence, thus:

". . . It was respondent's closeness to the complainant's family as well as the

latter's complete trust in him that made possible his intimate relationship with

Lisa. When his concern was supposed to be complainant's legal affairs only,

he sneaked at the latter's back and courted his daughter. Like the proverbial

thief in the night, he attacked when nobody was looking. Moreover, he availed

of complainant's resources by securing a plane ticket from complainant's office

in order to marry the latter's daughter in Hong Kong. He did this without

complainant's knowledge. Afterwards, he even had the temerity to assure

complainant that "everything is legal." Clearly, respondent had crossed the

limits of propriety and decency.

Indeed, we are not prepared to exonerate respondent or reduce the penalty we imposed on him

as it will denigrate the standard of the law profession.

WHEREFORE, respondent's Motion to Vacate our Decision dated September 15, 2004 is

hereby DENIED.

SO ORDERED.

EMMA T. DANTES, complainant, vs. ATTY. CRISPIN G. DANTES, respondent.

D E C I S I O N

PER CURIAM:

Despite variations in the specific standards and provisions, one requirement remains constant in

all the jurisdictions where the practice of law is regulated: the candidate must demonstrate that

he or she has "good moral character," and once he becomes a lawyer he should always behave

in accordance with the standard. In this jurisdiction too, good moral character is not only a

condition precedent to the practice of law, but an unending requirement for all the members of

the bar. Hence, when a lawyer is found guilty of grossly immoral conduct, he may be

suspended or disbarred.

In an Affidavit-Complaint dated June 6, 2001, filed with the Integrated Bar of the Philippines

(IBP), Emma T. Dantes, sought the disbarment of her husband, Atty. Crispin G. Dantes on the

ground of immorality, abandonment, and violation of professional ethics and law. The case was

docketed as CBD Case No. 01-851.

Complainant alleged that respondent is a philanderer. Respondent purportedly engaged in illicit

relationships with two women, one after the other, and had illegitimate children with them.

From the time respondent's illicit affairs started, he failed to give regular support to

complainant and their children, thus forcing complainant to work abroad to provide for their

children's needs. Complainant pointed out that these acts of respondent constitute a violation of

his lawyer's oath and his moral and legal obligation to be a role model to the community.

On July 4, 2001, the IBP Commission on Bar Discipline issued an Order requiring respondent

to submit his answer to the Affidavit-Complaint.

Respondent submitted his Answer on November 19, 2001. Though admitting the fact of

marriage with the complainant and the birth of their children, respondent alleged that they have

mutually agreed to separate eighteen (18) years before after complainant had abandoned him in

their Balintawak residence and fled to San Fernando, Pampanga. Respondent claimed that

when complainant returned after eighteen years, she insisted that she be accommodated in the

place where he and their children were residing. Thus, he was forced to live alone in a rented

apartment.

Respondent further alleged that he sent their children to the best school he could afford and

provided for their needs. He even bought two lots in Pampanga for his sons, Dandelo and

Dante, and gave complainant adequate financial support even after she had abandoned him in

1983. DTIcSH

Respondent asserted that complainant filed this case in order to force him to remit seventy

percent (70%) of his monthly salary to her.

Subsequently, the IBP conducted its investigation and hearings on the complaint. Complainant

presented her evidence, both oral and documentary, to support the allegations in her Affidavit-

Complaint.

From the evidence presented by the complainant, it was established that on January 19, 1979,

complainant and respondent were married and lived with the latter's mother in Balintawak. At

that time, respondent was just a fourth year law student. To make ends meet, complainant

engaged in the buy and sell business and relied on dole-outs from the respondent's mother.

Three children were born to the couple, namely, Dandelo, Dante and Daisy, who were born on

February 20, 1980, October 14, 1981 and August 11, 1983, respectively. Complainant

narrated that their relationship was marred by frequent quarrels because of respondent's extra-

marital affairs. Sometime in 1983, she brought their children to her mother in Pampanga to

enable her to work because respondent had failed to provide adequate support. From 1986 to

2001, complainant worked abroad as a domestic helper.

Denying that there was a mutual agreement between her and respondent to live separately,

complainant asseverated that she was just compelled to work abroad to support their children.

When she returned to the Philippines, she learned that respondent was living with another

woman. Respondent, then bluntly told her, that he did not want to live with her anymore and

that he preferred his mistresses.

Complainant presented documentary evidence consisting of the birth certificates of Ray

Darwin, Darling, and Christian Dave, all surnamed Dantes, and the affidavits of respondent

and his paramour to prove the fact that respondent sired three illegitimate children out of his

illicit affairs with two different women. Letters of complainant's legitimate children likewise

support the allegation that respondent is a womanizer.

In an Order dated April 17, 2002, respondent was deemed to have waived his right to cross-

examine complainant, after he failed to appear during the scheduled hearings despite due

notice. He, however, submitted his Comment/Opposition to the Complainant's Formal Offer of

Evidence with Motion to Exclude the Evidence from the Records of the Proceedings on

August 1, 2002.

Subsequently, on May 29, 2003, respondent submitted a Motion to Adopt Alternative Dispute

Resolution Mechanism. Respondent's motion was denied because it was filed after the

complainant had already presented her evidence. Respondent was given a final chance to

present his evidence on July 11, 2003. Instead of presenting evidence, respondent filed

a Motion for Reconsideration with Motion to Dismiss, which was likewise denied for being a

prohibited pleading under the Rules of Procedure of the Commission on Bar Discipline.

Respondent submitted hisPosition Paper on August 4, 2003.

In respondent's Position Paper, he reiterated the allegations in his Answer except that this time,

he argued that in view of the resolution of the complaint for support with alimony pendente

lite filed against him by the complainant before the Regional Trial Court (RTC) of Quezon

City, the instant administrative case should be dismissed for lack of merit. CIHTac

On July 7, 2004, the IBP submitted to us through the Office of the Bar Confidant

its Report and Resolution No. XVI-2004-230 involving CBD Case No. 01-851. The IBP

recommended that the respondent be suspended indefinitely from the practice of law.

Except for the penalty, we find the above recommendation well-taken.

The Code of Professional Responsibility provides:

"Rule 1.01A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct."

"Canon 7A lawyer shall at all times uphold the integrity and dignity of the

legal profession, and support the activities of the Integrated Bar."

"Rule 7.03A lawyer shall not engage in conduct that adversely reflects on his

fitness to practice law, nor should he, whether in public or private life, behave

in a scandalous manner to the discredit of the legal profession."

The Code of Professional Responsibility forbids lawyers from engaging in unlawful, dishonest,

immoral or deceitful conduct. Immoral conduct has been defined as that conduct which is so

willful, flagrant, or shameless as to show indifference to the opinion of good and respectable

members of the community To be the basis of disciplinary action, the lawyer's conduct must

not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a

criminal act or so unprincipled as to be reprehensible to a high degree or committed under such

scandalous or revolting circumstances as to shock the common sense of decency.

In Barrientos vs. Daarol, we ruled that as officers of the court, lawyers must not only in fact be

of good moral character but must also be seen to be of good moral character and leading lives

in accordance with the highest moral standards of the community. More specifically, a member

of the Bar and officer of the court is not only required to refrain from adulterous relationships

or keeping mistresses but must also so behave himself as to avoid scandalizing the public by

creating the belief that he is flouting those moral standards. If the practice of law is to remain

an honorable profession and attain its basic ideals, those enrolled in its ranks should not only

master its tenets and principles but should also, in their lives, accord continuing fidelity to

them. The requirement of good moral character is of much greater import, as far as the general

public is concerned, than the possession of legal learning. CIAHaT

It should be noted that the requirement of good moral character has three ostensible purposes,

namely: (i) to protect the public; (ii) to protect the public image of lawyers; and (iii) to protect

prospective clients. A writer added a fourth: to protect errant lawyers from themselves.

Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but

also throughout their legal career, in order to maintain their good standing in this exclusive and

honored fraternity. They may be suspended from the practice of law or disbarred for any

misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in

moral character, honesty, probity or good demeanor.

Undoubtedly, respondent's acts of engaging in illicit relationships with two different women

during the subsistence of his marriage to the complainant constitutes grossly immoral conduct

warranting the imposition appropriate sanctions. Complainant's testimony, taken in conjunction

with the documentary evidence, sufficiently established respondent's commission of marital

infidelity and immorality. Evidently, respondent had breached the high and exacting moral

standards set for members of the law profession. He has made a mockery of marriage which is

a sacred institution demanding respect and dignity.

In Toledo vs. Toledo, we disbarred respondent for abandoning his lawful wife and cohabiting

with another woman who had borne him a child. Likewise, in Obusan vs. Obusan, we ruled

that abandoning one's wife and resuming carnal relations with a paramour fall within that

conduct which is willful, flagrant, or shameless, and which shows moral indifference to the

opinion of the good and respectable members of the community.

We reiterate our ruling in Cordova vs. Cordova, that moral delinquency which affects the

fitness of a member of the bar to continue as such, includes conduct that outrages the generally

accepted moral standards of the community as exemplified by behavior which makes a

mockery of the inviolable social institution of marriage.

The power to disbar must be exercised with great caution, and only in a clear case of

misconduct that seriously affects the standing and character of the lawyer as an officer of the

Court and as a member of the bar. Where a lesser penalty, such as temporary suspension, could

accomplish the end desired, disbarment should never be decreed. However, in the present case,

the seriousness of the offense compels the Court to wield its power to disbar as it appears to be

the most appropriate penalty.

WHEREFORE, in view of the foregoing Atty. Crispin G. Dantes is hereby DISBARRED and

his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be

entered in the respondent's record as a member of the Bar, and notice of the same be served on

the Integrated Bar of the Philippines, and on the Office of the Court Administrator for

circulation to all courts in the country.

SO ORDERED.

VICTORIA LEGARDA, petitioner, vs. THE HONORABLE COURT OF APPEALS, NEW

CATHAY HOUSE, INC., THE HONORABLE REGIONAL TRIAL COURT OF QUEZON

CITY, BRANCH 94, respondents.

R E S O L U T I O N

ROMERO, J p:

For our resolution is the motion for reconsideration of the March 18, 1991, decision of the

Court's First Division, filed by private respondent New Cathay House, Inc. (Cathay). A brief

narration of facts is in order.

The parties hereto entered into a lease agreement over a certain Quezon City property owned

by petitioner Victoria Legarda. For some reason or another, she refused to sign the contract

although respondent lessee, Cathay, made a deposit and a down payment of rentals, prompting

the latter to file before the Regional Trial Court of Quezon City, Branch 94 a complaint against

the former for specific performance with preliminary injunction and damages. The court a

quo issued the injunction. In the meantime, Legarda's counsel, noted lawyer Dean Antonio

Coronel, requested a 10-day extension of time to file an answer which the court granted. Atty.

Coronel, however, failed to file an answer within the extended period. His client was eventually

declared in default, Cathay was allowed to present evidence ex-parte, and on March 25, 1985, a

judgment by default was reached by the trial court ordering Legarda to execute the lease

contract in favor of, and to pay damages to, Cathay.

On April 9, 1985, a copy of said decision was served on Atty. Coronel but he took no action

until the judgment became final and executory. A month later, the trial court issued a writ of

execution and a public auction was held where Cathay's manager, Roberto V. Cabrera, Jr., as

highest bidder, was awarded the property for P376,500.00 in satisfaction of the judgment debt.

Consequently, a Certificate of Sale was issued by the sheriff on June 27, 1985. Upon failure of

Legarda to redeem her property within the one-year redemption period, a Final Deed of Sale

was issued by the sheriff on July 8, 1986, which was registered by Cabrera with the Register of

Deeds three days later. Hence, Legarda's Transfer Certificate of Title (TCT) No. 270814 was

cancelled with the issuance of TCT No. 350892 in the name of Cabrera.

Despite the lapse of over a year since the judgment by default became final and executory,

Atty. Coronel made no move on behalf of his client. He did not even inform her of all these

developments. When Legarda did learn of the adverse decision, "she nevertheless did not lose

faith in her counsel" and prevailed upon him to seek appropriate relief. Thus, on October 23,

1986, he filed a petition for annulment of judgment with prayer for the issuance of a writ of

preliminary mandatory injunction before the Court of Appeals. On November 29, 1989, the

appellate court rendered a decision affirming the March 25, 1985, decision of the trial court,

dismissing the petition for annulment of judgment, and holding Legarda bound by the

negligence of her counsel. It considered her allegation of fraud by Cathay to be "improbable,"

and added that there was "pure and simple negligence" on the part of petitioner's counsel who

failed to file an answer and, later, a petition for relief from judgment by default. Upon notice of

the Court of Appeals decision, Atty. Coronel again neglected to protect his client's interest by

failing to file a motion for reconsideration or to appeal therefrom until said decision became

final on December 21, 1989.

Sometime in March 1990, Legarda learned of the adverse decision of the Court of Appeals

dated November 29, 1989, not from Atty. Coronel but from his secretary. She then hired a new

counsel for the purpose of elevating her case to this Court. The new lawyer filed a petition for

certiorari praying for the annulment of the decision of the trial and appellate courts and of the

sheriff's sale, alleging, among other things, that Legarda lost in the courts below because her

previous lawyer was grossly negligent and inefficient, whose omissions cannot possibly bind

her because this amounted to a violation of her right to due process of law. She, therefore,

asked Cathay (not Cabrera) to reconvey the subject property to her.

On March 18, 1991, a decision was rendered in this case by Mr. Justice Gancayco, ruling, inter

alia, as follows: (a) granting the petition; (b) nullifying the trial court's decision dated March

25, 1985, the Court of Appeals decision dated November 29, 1989, the Sheriff's Certificate of

Sale dated June 27, 1985, of the property in question, and the subsequent final deed of sale

covering the same property; and (c) ordering Cathay to reconvey said property to Legarda, and

the Register of Deeds to cancel the registration of said property in the name of Cathay (not

Cabrera) and to issue a new one in Legarda's name.

The Court then declared that Atty. Coronel committed, not just ordinary or simple negligence,

but reckless, inexcusable and gross negligence, which deprived his client of her property

without due process of law. His acts, or the lack of it, should not be allowed to bind Legarda

who has been "consigned to penury" because "her lawyer appeared to have abandoned her case

not once but repeatedly." Thus, the Court ruled against tolerating "such unjust enrichment" of

Cathay at Legarda's expense, and noted that counsel's "lack of devotion to duty is so gross and

palpable that this Court must come to the aid of his distraught client."

Aggrieved by this development, Cathay filed the instant motion for reconsideration,

alleging, inter alia, that reconveyance is not possible because the subject property had already

been sold by its owner, Cabrera, even prior to the promulgation of said decision. By virtue of

the Gancayco decision, Cathay was duty bound to return the subject property to Legarda. The

impossibility of this directive is immediately apparent, for two reasons: First, Cathay neither

possessed nor owned the property so it is in no position to reconvey the same; second, even if it

did, ownership over the property had already been validly transferred to innocent third parties

at the time of promulgation of said judgment.

There is no question that the highest bidder at the public auction was Cathay's manager. It has

not been shown nor even alleged, however, that Roberto Cabrera has all the time been acting

for or in behalf of Cathay. For all intents and purposes, Cabrera was simply a vendee whose

payment effectively extinguished Legarda's liability to Cathay as the judgment creditor. No

proof was ever presented which would reveal that the sale occurred only on paper, with Cabrera

acting as a mere conduit for Cathay. What is clear from the records is that the auction sale was

conducted regularly, that a certificate of sale and, subsequently, a final deed of sale were issued

to Cabrera which allowed him to consolidate his ownership over the subject property, register it

and obtain a title in his own name, and sell it to Nancy Saw, an innocent purchaser for value, at

a premium price. Nothing on record would demonstrate that Cathay was the beneficiary of the

sale between Cabrera and Saw. Cabrera himself maintained that he was "acting in his private

(as distinct from his corporate) capacity" when he participated in the bidding.

Since the decision of the Court of Appeals gained finality on December 21, 1989, the subject

property has been sold and ownership thereof transferred no less than three times, viz.: (a) from

Cabrera to Nancy Saw on March 21, 1990, four months after the decision of the Court of

Appeals became final and executory and one year before the promulgation of the March 18,

1991, decision under reconsideration; (b) from Nancy Saw to Lily Tanlo Sy Chua on August 7,

1990, more than one year before the Court issued a temporary restraining order in connection

with this case; and (c) from the spouses Victor and Lily Sy Chua to Janet Chong Luminlun on

April 3, 1992. With these transfers, Cabrera's TCT No. 350892 gave way to Saw's TCT No.

31672, then to Chua's TCT No. 31673, and finally to Luminlun's TCT No. 99143, all issued by

the Register of Deeds of Quezon City on April 3, 1990, August 8, 1990, and November 24,

1993, respectively.

We do not have to belabor the fact that all the successors-in-interest of Cabrera to the subject

lot were transferees for value and in good faith, having relied as they did on the clean titled of

their predecessors. The successive owners were each armed with their own indefeasible titles

which automatically brought them under the aegis of the Torrens System. As the Court

declared in Sandoval v. Court of Appeals, "(i)t is settled doctrine that one who deals with

property registered under the Torrens system need not go beyond the same, but only has to rely

on the title. He is charged with notice only of such burdens and claims as are annotated on the

title." In the case at bar, it is not disputed that no notice oflis pendens was ever annotated on

any of the titles of the subsequent owners. And even if there were such a notice, it would not

have created a lien over the property because the main office of a lien is to warn prospective

buyers that the property they intend to purchase is the subject of a pending litigation. Therefore,

since the property is already in the hands of Luminlun, an innocent purchaser for value, it can

no longer be returned to its original owner by Cabrera, much less by Cathay itself. cdphil

Another point to consider, though not raised as an issue in this case, is the fact that Cabrera was

impleaded as a party-respondent only on August 12, 1991, after the promulgation of

the Gancayco decision. The dispositive portion itself ordered Cathay, instead of Cabrera, to

reconvey the property to Legarda. Cabrera was never a party to this case, either as plaintiff-

appellee below or as respondent in the present action. Neither did he ever act as Cathay's

representative. As we held in the recent case of National Power Corporation v. NLRC, et

al., "(j)urisdiction over a party is acquired by his voluntary appearance or submission to the

court or by the coercive process issued by the court to him, generally by service of

summons." In other words, until Cabrera was impleaded as party respondent and ordered to

file a comment in the August 12, 1991, resolution, the Court never obtained jurisdiction over

him, and to command his principal to reconvey a piece of property which used to be HIS would

not only be inappropriate but would also constitute a real deprivation of one's property without

due process of law.

Assuming arguendo that reconveyance is possible, that Cathay and Cabrera are one and the

same and that Cabrera's payment redounded to the benefit of his principal, reconveyance, under

the facts and evidence obtaining in this case, would still not address the issues raised herein.

The application of the sale price to Legarda's judgment debt constituted a payment which

extinguished her liability to Cathay as the party in whose favor the obligation to pay damages

was established. It was a payment in the sense that Cathay had to resort to a court-supervised

auction sale in order to execute the judgment. With the fulfillment of the judgment debtor's

obligation, nothing else was required to be done. Under the Gancayco ruling, the order of

reconveyance was premised on the alleged gross negligence of Legarda's counsel which should

not be allowed to bind her as she was deprived of her property "without due process of law."

It is, however, basic that as long as a party was given the opportunity to defend her interests in

due course, she cannot be said to have been denied due process of law, for this opportunity to

be heard is the very essence of due process. The chronology of events shows that the case took

its regular course in the trial and appellate courts but Legarda's counsel failed to act as any

ordinary counsel should have acted, his negligence every step of the way amounting to

"abandonment," in the words of the Gancayco decision. Yet, it cannot be denied that the

proceedings which led to the filing of this case were not attended by any irregularity. The

judgment by default was valid, so was the ensuing sale at public auction. If Cabrera was

adjudged highest bidder in said auction sale, it was not through any machination on his part. All

of his actuations that led to the final registration of the title in his name were aboveboard,

untainted by any irregularity.

The fact that Cabrera is an officer of Cathay does not make him a purchaser in bad faith. His

act in representing the company was never questioned nor disputed by Legarda. And while it is

true that he won in the bidding, it is likewise true that said bidding was conducted by the book.

There is no call to be alarmed in case an official of the company emerges as the winning bidder

since in some cases, the judgment creditor himself personally participates in the bidding.

There is no gainsaying that Legarda is the judgment debtor here. Her property was sold at

public auction to satisfy the judgment debt. She cannot claim that she was illegally deprived of

her property because such deprivation was done in accordance with the rules on execution of

judgments. Whether the money used to pay for said property came from the judgment creditor

or its representative is not relevant. What is important is that it was purchased for value.

Cabrera parted with real money at the auction. In his "Sheriff's Certificate of Sale" dated June

27, 1985, Deputy Sheriff Angelito R. Mendoza certified, inter alia, that the "highest bidder

paid to the Deputy Sheriff the said amount of P376,500.00, the sale price of the levied

property." If this does not constitute payment, what then is it? Had there been no real purchase

and payment below, the subject property would never have been awarded to Cabrera and

registered in his name, and the judgment debt would never have been satisfied. Thus, to require

either Cathay or Cabrera to reconvey the property would be an unlawful intrusion into the

lawful exercise of the latter's proprietary rights over the land in question, an act which would

constitute an actual denial of property without due process of law.

It may be true that the subject lot could have fetched a higher price during the public auction, as

Legarda claims, but the records fail to betray any hint of a bid higher than Cabrera's which was

bypassed in his favor. Certainly, he could not help it if his bid of P376,500.00 was the highest.

Moreover, in spite of this allegedly low selling price, Legarda still failed to redeem her

property within the one-year redemption period. She could not feign ignorance of said sale on

account of her counsel's failure to so inform her, because such auction sales comply with

requirements of notice and publication under the Rules of Court. In the absence of any clear

and convincing proof that such requisites were not followed, the presumption of regularity

stands. Legarda also maintains that she was in the United States during the redemption period,

but she admits that she left the Philippines only on July 13, 1985, or sixteen days after the

auction sale of June 27, 1985. Finally, she admits that her mother Ligaya represented her during

her absence. 14 In short, she was not totally in the dark as to the fate of her property and she

could have exercised her right of redemption if she chose to, but she did not.

Neither Cathay nor Cabrera should be made to suffer for the gross negligence of Legarda's

counsel. If she may be said to be "innocent" because she was ignorant of the acts of negligence

of her counsel, with more reason are respondents truly "innocent." As between two parties who

may lose due to the negligence or incompetence of the counsel of one, the party who was

responsible for making it happen should suffer the consequences. This reflects the basis

common law maxim, so succinctly stated by Justice J.B.L. Reyes, that ". . . (B)etween two

innocent parties, the one who made it possible for the wrong to be done should be the one to

bear the resulting loss." In this case, it was not respondents, but Legarda, who misjudged and

hired the services of the lawyer who practically abandoned her case and who continued to

retain him even after his proven apathy and negligence.

The Gancayco decision makes much of the fact that Legarda is now "consigned to penury" and,

therefore, this Court "must come to the aid of the distraught client." It must be remembered that

this Court renders decisions, not on the basis of emotions but on its sound judgment, applying

the relevant, appropriate law. Much as it may pity Legarda, or any losing litigant for that

matter, it cannot play the role of a "knight in shining armor" coming to the aid of someone, who

through her weakness, ignorance or misjudgment may have been bested in a legal joust which

complied with all the rules of legal proceedings.

In Vales v. Villa, this Court warned against the danger of jumping to the aid of a litigant who

commits serious error of judgment resulting in his own loss:

". . . Courts operate not because one person has been defeated or overcome by

another, but because he has been defeated or overcome illegally. Men may do

foolish things, make ridiculous contracts, use miserable judgment, and lose

money by them — indeed, all they have in the world; but not for that alone can

the law intervene and restore. There must be, in addition, a violation of law,

the commission of what the law knows as an actionable wrong, before the

courts are authorized to lay hold of the situation and remedy it."

Respondents should not be penalized for Legarda's mistake. If the subject property was at all

sold, it was only after the decisions of the trial and appellate courts had gained finality. These

twin judgments, which were nullified by the Gancayco decision, should be respected and

allowed to stand by this Court for having become final and executory. cdasia

"A judgment may be broadly defined as the decision or sentence of the law given by a court or

other tribunal as the result of proceedings instituted therein." It is "a judicial act which settles

the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and it is

regarded as the sentence of the law pronounced by the court on the action or question before it."

In the case at bar, the trial court's judgment was based on Cathay's evidence after Legarda was

declared in default. Damages were duly awarded to Cathay, not whimsically, but upon proof of

its entitlement thereto. The issue of whether the plaintiff (Cathay) deserved to recover damages

because of the defendant's (Legarda's) refusal to honor their lease agreement was resolved.

Consequently, the right of Cathay to be vindicated for such breach and the liability incurred by

Legarda in the process were determined.

This judgment became final when she failed to avail of remedies available to her, such as filing

a motion for reconsideration or appealing the case. At the time, the issues raised in the

complaint had already been determined and disposed of by the trial court. This is the stage of

finality which judgments must at one point or another reach. In our jurisdiction, a judgment

becomes ipso facto final when no appeal is perfected or the reglementary period to appeal

therefrom expires. "The necessity of giving finality to judgments that are not void is self-

evident. The interests of society impose it. The opposite view might make litigations more

unendurable than the wrongs (they are) intended to redress. It would create doubt, real or

imaginary, and controversy would constantly arise as to what the judgment or order was. Public

policy and sound practice demand that, at the risk of occasional errors, judgments of courts

should become final at some definite date fixed by law. The very object for which courts were

instituted was to put an end to controversies." When judgments of lower courts gain finality,

"they, too, become inviolable, impervious to modification. They may, then, no longer be

reviewed, or in any way modified directly or indirectly, by a higher court, not even by the

Supreme Court." In other words, once a judgment becomes final, the only errors that may be

corrected are those which are clerical.

From the foregoing precedents, it is readily apparent that the real issue that must be resolved on

this motion for reconsideration is the alleged illegality of the final judgments of the trial and

appellate courts. Void judgments may be classified into two groups: those rendered by a court

without jurisdiction to do so and those obtained by fraud or collusion. 23 This case must be

tested in light of the guidelines governing the latter class of judgments. "In this regard, an

action to annul a judgment on the ground of fraud will not lie unless the fraud is extrinsic or

collateral and facts upon which it is based (have) not been controverted or resolved in the case

where (the) judgment was rendered." Where is the fraud in the case at bar? Was Legarda

unlawfully barred from the proceedings below? Did her counsel sell her out to the opponent?

It must be noted that, aside from the fact that no extrinsic fraud attended the trial and resolution

of this case, the jurisdiction of the court a quoover the parties and the subject matter was never

raised as an issue by Legarda. Such being the case, the decision of the trial court cannot be

nullified. Errors of judgment, if any, can only be reviewed on appeal, failing which the decision

becomes final and executory, "valid and binding upon the parties in the case and their

successors in interest."

At this juncture, it must be pointed out that while Legarda went to the Court of Appeals

claiming precisely that the trial court's decision was fraudulently obtained, she grounded her

petition before the Supreme Court upon her estranged counsel's negligence. This could only

imply that at the time she filed her petition for annulment of judgment, she entertained no

notion that Atty. Coronel was being remiss in his duties. It was only after the appellate court's

decision had become final and executory, a writ of execution issued, the property auctioned off

then sold to an innocent purchase for value, that she began to protest the alleged negligence of

her attorney. In most cases, this would have been dismissed outright for being dilatory and

appearing as an act of desperation on the part of a vanquished litigant. The Gancayco ruling,

unfortunately, ruled otherwise.

Fortunately, we now have an opportunity to rectify a grave error of the past.

WHEREFORE, the Motion for Reconsideration of respondent New Cathay House, Inc. is

hereby GRANTED. Consequently, the decision dated March 18, 1991, of the Court's First

Division in VACATED and SET ASIDE. A new judgment is hereby entered DISMISSING the

instant petition for review and AFFIRMING the November 29, 1989, decision of the Court of

Appeals in CA- G.R. No. SP-10487. Costs against petitioner Victoria Legarda.

SO ORDERED.

HONORATO ESPINOSA, petitioner, vs. COURT OF APPEALS, HON. PRESIDING

JUDGE, Branch 23, RTC Iloilo City and Sps. RODOLFO and VIOLETA

ALCANTARA, respondents.

D E C I S I O N

TINGA, J p:

This is a petition for review of the Decision dated October 11, 1996 of the Court of Appeals in

CA-G.R. SP No. 39206, dismissing the petition for the annulment of the Decision dated May

15, 1990 of the Regional Trial Court of Iloilo City (RTC) in Civil Case No. 18622.

The antecedents are recited below.

After finding through a relocation survey that a portion of their Lot 933-A-1-A, covered by

Transfer Certificate of Title No. T-69242 (Iloilo), was occupied by the petitioner Honorato

Espinosa's ("Espinosa") restaurant, known as "Tatoy's Manokan and Seafoods Restaurant", the

private respondents Rodolfo and Violeta Alcantara ("Alcantaras") filed an action for ejectment

against Espinosa before the Municipal Trial Court in Cities, Iloilo City (MTC), on November 4,

1985.

Espinosa denied the encroachment. Also through his counsel then, Atty. Rex Castillon,

Espinosa succeeded in having the case tried as in a regular case, instead of a hearing under the

Rules on Summary Procedure.

After trial, the MTC rendered judgment on February 6, 1989 in favor of Espinosa, dismissing

the complaint and ordering the Alcantara spouses to pay moral damages, exemplary damages,

attorney's fees, litigation expenses, and costs of suit. It found that Espinosa did not encroach on

the lot of the Alcantaras as his restaurant was situated on Lot 933-A-18 which he owns.

The Alcantaras appealed the decision to the RTC. Its Presiding Judge, Hon. Tito G. Gustilo,

noted that the lot of the Alcantaras and the adjoining lots, including those of Espinosa and the

city street, are all titled properties. On that basis and with the concurrence of the parties and

their respective lawyers, the Judge issued an Order on October 2, 1989, commissioning the

Bureau of Lands to conduct a relocation survey for the purpose of determining whether

Espinosa's restaurant has indeed encroached on the Alcantaras' lot.

Judge Gustilo presided over the ocular inspection and relocation survey on October 2, 1989.

Present were the parties and their lawyers.

In due time, the Bureau of Lands through its authorized representative submitted to the RTC

the result of the relocation survey with the corresponding sketch plan. The sketch plan

indicates that Espinosa's restaurant encroaches on eighty-nine (89) square meters of the

Alcantaras' Lot 933-A-1-A and also on a portion of the city street known as Melo Boulevard

and designated as Lot 933-A-1-B. Said street lot used to be a part of the bigger property owned

by the Alcantaras' predecessor-in-interest from whom the City of Iloilo purchased the street lot.

During the relocation survey, Judge Gustilo proposed a compromise settlement to the parties

and their lawyers whereby should the relocation survey attest to the encroachment on the

Alcantaras' lot Espinosa would buy the encroached area at P250.00 per square meter from the

Alcantaras. Espinosa agreed to the proposal at the time. However, when the Judge invited the

parties and their counsels to his chambers to explore or pursue the proposed compromise

agreement on three (3) occasions, namely: on December 27, 1989, April 2, 1990 and April 5,

1990, Espinosa rejected the proffered settlement.

On May 15, 1990, the RTC rendered its decision in favor of the Alcantaras, reversing the MTC

decision and ordering Espinosa to vacate the lot in question and to pay the Alcantaras moral

damages, attorney's fees, litigation expenses and costs of suit.

Espinosa elevated the RTC decision to the Court of Appeals through a Petition For

Review which was docketed as CA-G.R. SP No. 22398.

On September 6, 1993, the Court of Appeals promulgated its Decision in the case, denying

Espinosa's Petition For Review. Unfazed, Espinosa elevated the CA Decision to this Court and

his Petition was docketed as G.R. No. 111752. This Court denied the Petition in

aResolution dated February 27, 1995 for which the corresponding Entry of Judgment was made

on August 18, 1995.

Less than three (3) months later, on December 6, 1995, Espinosa, this time through his present

counsel, Atty. Honorio S. Laguilles, Jr., filed a petition for annulment of judgment with the

Court of Appeals. He alleged that the promulgation of the RTC decision was attended with

extrinsic fraud and denial of due process. In his verification and certification of non-forum

shopping, however, Espinosa was silent on the petitions he earlier filed with the Court of

Appeals (CA-G.R. SP No. 22398) and this Court (G.R. No. 111752) and the decision or

resolution on the petitions.

In the challenged Decision, the Court of Appeals dismissed the petition for annulment of

judgment. It also declared Espinosa and his present counsel in contempt of court and fined

each of them One Thousand Pesos (P1,000.00) for forum-shopping. Consequently, the issues

before this Court are (a) whether the RTC Decision may be annulled on the ground of extrinsic

fraud and denial of due process, and (b) whether Espinosa and his present counsel are guilty of

forum-shopping.

Annulment of judgment is a recourse equitable in character, allowed only in exceptional cases

as where there is no available or other adequate remedy. Extrinsic fraud, the ground upon

which Espinosa relies upon, is one of the recognized grounds for annulment of judgment.

However, the mere allegation of extrinsic fraud does not instantly warrant the annulment of a

final judgment, as the same has to be definitively established by the claimant. Espinosa has

failed to prove extrinsic fraud.

Extrinsic fraud exists when there is a fraudulent act of prevailing party committed outside of

the trial of the case, whereby the defeated party was prevented from exhibiting fully his side of

the case by fraud or deception practiced on him by the prevailing party. The extrinsic fraud

complained off by Espinosa refers to the act of conducting the relocation survey while the case

was on appeal to the RTC. Espinosa suggests that it was highly questionable on the part of the

RTC to have ordered such a survey since the case was being heard on appeal, and given the

nature of an ejectment action, only the submission of memoranda by the parties are required.

Clearly, the conduct of the relocation survey was not occasioned at the instigation of the

prevailing party (the Alcantaras), but upon lawful order by the RTC. Moreover, the procedure

was consented to by all of the parties and their lawyers. The relocation survey was ordered for

the purpose of conclusively ascertaining a factual issue, i.e., the exact location of the structure

belonging to Espinosa in relation to the lot of the Alcantaras. This is a proper question for the

RTC to have inquired into, and well within its competence as it is a trier of facts. Every court

has the inherent power to do all things reasonably necessary for the administration of justice

within the scope of its jurisdiction.

Even assuming that the order for the relocation survey is irregular on the premise that RTC may

decide the appealed case based only on the records and pleadings before it, such lapse is

procedural in character only. The findings would not be ipso facto binding on the parties who

consented to the survey, but would only form part of the proofs on which the trial court would

base its decision upon. Despite such relocation survey, Espinosa was not prevented from

challenging the findings before the RTC. Nor was Espinosa prevented from arguing against the

adoption of such findings before the Court of Appeals and the Supreme Court, considering that

he had availed of the proper appellate processes before these higher courts. Indeed, Espinosa

raised the same issue concerning the alleged impropriety of the relocation survey ordered by

the RTC before the CA in CA G.R. SP No. 22398. It was rejected by the appellate court in its

decision in the said case. The same issue was raised again in G.R. No. 111752 before this

Court, albeit unsuccessfully. A claim of extrinsic fraud would presuppose that the claimant was

prevented exhibiting fully his side of the case. On the contrary, Espinosa has had multiple

opportunities to raise the same issue on the impropriety of the relocation survey before the

courts. His claim has acquired the veneer of a scratchy vinyl record that repeats its hoary

tune ad nauseum to the general effect of irritation.

Espinosa claims that he was deprived of due process and blames his former counsel, Atty.

Castillon, for having consented to the relocation survey, implicitly suggesting that the lawyer

too had an active hand in denying him due process. Indubitably, Espinosa and his former

counsel agreed to the relocation survey, were present during the survey and are thus estopped

from questioning its very conduct in the first place. When a party retains the services of a

lawyer, he is bound by his counsel's decisions regarding the conduct of the case. The general

rule is that the client is bound by the mistakes of his counsel, save when the negligence of

counsel is so gross, reckless and inexcusable that the client is deprived of his day in court.

Citing the cases of Legarda v. Court of Appeals and Alabanzas v. IAC , Espinosa invokes the

exception to the general rule that a client need not be bound by the actions of counsel who is

grossly and palpably negligent. These very cases cited demonstrate why Atty. Castillon's acts

hardly constitute gross or palpable negligence. Legarda provides a textbook example of gross

negligence on the part of the counsel. The Court therein noted the following negligent acts of

lawyer Antonio Coronel:

Petitioner's counsel is a well-known practicing lawyer and dean of a law

school. It is to be expected that he would extend the highest quality of service

as a lawyer to the petitioner. Unfortunately, counsel appears to have

abandoned the cause of petitioner. After agreeing to defend the petitioner in

the civil case filed against her by private respondent, said counsel did nothing

more than enter his appearance and seek for an extension of time to file the

answer. Nevertheless, he failed to file the answer. Hence, petitioner was

declared in default on motion of private respondent's counsel. After the

evidence of private respondent was received ex-parte, a judgment, was

rendered by the trial court.

Said counsel for petitioner received a copy of the judgment but took no steps

to have the same set aside or to appeal therefrom. Thus, the judgment became

final and executory.

Gross negligence on the part of the counsel in Legarda is clearly established, characterized by a

series of negligent omissions that led to a final executory judgment against the client, who

never once got her side aired before the court of law before finality of judgment set in. The

actions of Atty. Castillon hardly measure up to this standard of gross negligence exhibited in

the Legarda case. On the other hand, in Alabanzas counsel failed to file an appellant's brief,

thereby causing the dismissal of the appeal before the Court of Appeals. Despite such

inexcusable and fatal lapse, the Court ruled that it was not sufficient to establish such gross or

palpable negligence that justified a deviation from the rule that clients should be bound by the

acts and mistakes of their counsel. It strikes as odd that Espinosa should cite Alabanzas in the

first place, considering that the lapse of the counsel therein was far worse than that imputed to

Atty. Castillon, yet the Court anyway still refused to apply the exception to the general rule.

Besides, there is nothing in the record that would tend to establish that Atty. Castillon

performed less than ably in representing Espinosa. On the contrary, as noted by the Alcantaras

in their Comment, Atty. Castillon is a law professor on Property and a distinguished

practitioner in the City of Iloilo. Moreover, Atty. Castillon served as Espinosa's counsel for

more than ten years. Espinosa's defeat is attributable not to the purported incompetence of his

former lawyer but to the untenability of his legal position. And even if Atty. Castillon

committed a tactical error in consenting to the relocation survey, this was done out of the

honest belief that the survey would benefit his client's cause. Just because it did not, Espinosa

and his new counsel could not just turn about and pin the blame on the patsy of their convenient

choice.

Another matter cited by the Court of Appeals is also worth noting. The Petition for Annulment

of Judgment is silent as to when Espinosa received a copy of the impugned decision, or when

he discovered the alleged extrinsic fraud. An action based on extrinsic fraud must be filed

within four (4) years from its discovery. Since the timeliness of the Petition could not be

ascertained, it could have very well been dismissed on that ground alone.

Anent the issue of forum-shopping, the Court agrees with the Court of Appeals' finding that

Espinosa and his present counsel, Atty. Laguilles, Jr., violated the rules on non-forum

shopping. Revised Circular No. 28-91 (as amended) was already in force when the petition in

CA G.R. SP No. 39206 was filed on October 11, 1996. Under the Circular, which has since

been incorporated into the 1997 Rules of Civil Procedure, the petitioner has to attest that he

has not commenced any other action or proceeding involving the same issues in the Supreme

Court, the Court of Appeals, or any other tribunal or agency. If such an action or proceeding

has been instituted, the petitioner is obliged to state the status of the same.

In his Verification, Certification and Affidavit of Merit, which contains the certificate of non-

forum shopping in the petition in CA G.R. SP No. 39206, Espinosa and his new counsel did not

mention the petitions in CA G.R. SP No. 22398 and G.R. No. 111752 and the decisions or

resolutions thereon. In his present petition before this Court, Espinosa does mention the

existence of the previous cases in his Verification With Affidavit of Non-Forum Shopping,

though with the disclaimer that those cases involved different issues than those addressed in the

current petition. The belated compliance, however, is of no moment, as his failure to assert the

same before the Court of Appeals is sufficient to warrant liability.

Espinosa argues against this finding by noting that the issues of "denial of due process" and

"fraud" were raised for the first time in the Petition for Annulment of Judgment. Yet, the proof

of such fraud is the alleged improper allowance of the relocation survey. As the Court of

Appeals noted, that same question of impropriety was already passed upon by the Court of

Appeals and the Supreme Court in two previous petitions filed by Espinosa. The Court of

Appeals noted that: "A reading of the petition filed [in CA-G.R. SP No. 22398] vis-a-vis the

one filed in this case would readily reveal that not much difference exists between the two

except that the first is a petition for review while the present is one for annulment of

judgment." In the pithy words of the Court of Appeals, "same dog, but with a different collar."

However, this Court is unable to sustain the Court of Appeals' declaration that Espinosa and his

counsel are in contempt of court and the corresponding fine of One Thousand Pesos

(P1,000.00) imposed upon them. Under Revised Circular No. 28-91, the submission of a false

certification constitutes indirect contempt of court, without prejudice to the filing of criminal

action against the guilty party and the institution of disciplinary proceedings against the

counsel. Unlike in cases of direct contempt, which can be summarily adjudged and punished by

a fine , a finding of guilt for indirect contempt must be preceded by a charge in writing, an

opportunity given to the respondent to comment thereon and to be heard by himself or by

counsel in a hearing. The Court of Appeals erred in summarily punishing Espinosa and his

counsel, considering that the charge against them only constitutes indirect contempt. In cases of

indirect contempt, no matter how palpable the errant's bad faith might appear to the court, due

process as laid down in the rules of procedure must be observed before the penalty is imposed.

Finally, the ejectment case against Espinosa was filed way back in 1985, and the judgment

therein attained finality in 1995. If the pendency of this case has prevented the Alcantaras from

enforcing the long-final judgment in their favor, then such delay is understandably egregious.

The immediate execution of this judgment is declared exigent to enable the Alcantaras

deservedly to rest secure in the vindication of their rights and the enjoyment of their property.

WHEREFORE, the Petition is DENIED for lack of merit. The assailed Decision of the Court of

Appeals Sixteenth Division is AFFIRMED, EXCEPT insofar as it imposes a fine of One

Thousand Pesos (P1,000.00) on petitioner Honorato Espinosa and Atty. Honorio S. Laguilles,

Jr. Instead, the Court of Appeals is DIRECTED to initiate indirect contempt proceedings

against Espinosa and Atty. Laguilles, Jr., and RESOLVE the same in conformity with Rule 71

of the 1997 Rules of Civil Procedure.

SO ORDERED.

ISIDRA BARRIENTOS, complainant, vs. ATTY. ELERIZZA A. LIBIRAN-

METEORO, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J p:

Before this Court is a complaint for disbarment filed against Atty. Elerizza A. Libiran-Meteoro

for deceit and non-payment of debts.

A letter-complaint dated May 21, 2001 was filed with the Integrated Bar of the Philippines

(IBP) under the names of Isidra Barrientos and Olivia C. Mercado, which was signed, however,

by Isidra only. It states that: sometime in September of 2000, respondent issued several

Equitable PCIBank Checks in favor of both Isidra and Olivia, amounting to P67,000.00, and in

favor of Olivia, totaling P234,000.00, for the payment of a pre-existing debt; the checks

bounced due to insufficient funds thus charges for violation of B.P. 22 were filed by Isidra and

Olivia with the City Prosecutor of Cabanatuan; respondent sent text messages to complainants

asking for the deferment of the criminal charges with the promise that she will pay her debt;

respondent however failed to fulfill said promise; on May 16, 2001, respondent, through her

sister-in-law, tried to give complainants a title for a parcel of land in exchange for the bounced

checks which were in the possession of complainants; the title covered an area of 5,000 square

meters located at Bantug, La Torre, Talavera, Nueva Ecija, registered in the name of Victoria

Villamar which was allegedly paid to respondent by a client; complainants checked the

property and discovered that the land belonged to a certain Dra. Helen Garcia, the sole heir of

Victoria Villamar, who merely entrusted said title to respondent pursuant to a transaction with

the Quedancor; complainants tried to get in touch with respondent over the phone but the latter

was always unavailable, thus the present complaint. 1

On July 13, 2001, in compliance with the Order 2 of the IBP-Commission on Bar Discipline

(CBD), respondent filed her Answer alleging that: she issued several Equitable PCIBank

checks amounting to P234,000.00 in favor of Olivia but not to Isidra; said checks were issued

in payment of a pre-existing obligation but said amount had already been paid and replaced

with new checks; Isidra signed a document attesting to the fact that the subject of her letter-

complaint no longer exists; 3 she also issued in favor of Olivia several Equitable PCIBank

checks amounting to P67,000.00 for the payment of a pre-existing obligation; the checks which

were the subject of the complaint filed at the City Prosecutor’s Office in Cabanatuan City are

already in the possession of respondent and the criminal case filed by complainants before the

Municipal Trial Court of Cabanatuan City Branch 3 was already dismissed; the Informations

for Violation of B.P. 22 under I.S. Nos. 01-14090-03 4 were never filed in court; Olivia already

signed an affidavit of desistance; respondent did not send text messages to Isidra and Olivia

asking for deferment of the criminal complaints neither did she present any title in exchange for

her bounced checks; she never transacted with Isidra since all dealings were made with Olivia;

and the present complaint was initiated by Isidra only because she had a misunderstanding with

Olivia and she wants to extract money from respondent. 5

Attached to said Answer is an affidavit signed by Olivia C. Mercado which states as follows:

1.That I am one of the complainants for the Disbarment of Atty. Elerizza

Libiran-Meteoro filed before the Integrated Bar of the Philippines National

Office in Pasig City, Philippines docketed as CBD case no. 01-840;

2.That the filing of the said complaint before the Integrated Bar of the

Philippines was brought about by some misunderstanding and error in the

accounting of the records of the account of Atty. Elerizza L. Meteoro;

3.That I was the one who transacted with Atty. Elerizza L. Meteoro and not

my co-complainant Isidra Barrientos; DIETcH

4.That all the pieces of jewelry were taken from me by Atty. Elerizza L.

Meteoro and the corresponding checks were given to Isidra Barrientos through

me;

5.That my name was indicated as co-complainant in a letter-complaint filed by

Ms. Isidra Barrientos against Atty. Elerizza L. Meteoro but I am not interested

in pursuing the complaint against Atty. Elerizza L. Meteoro since the

complaint was brought about by a case of some mistakes in the records;

6.That I, together with Isidra Barrientos had already signed an affidavit of

desistance and submitted the same before the Municipal Trial Court Branch III

of Cabanatuan City w(h)ere Criminal Case Nos. 77851 to 56 for violation of

BP 22 were filed against Atty. Meteoro;

7.That with respect to I.S. nos. 03-01-1356 to 1361 the case was not filed in

court and I have also executed an affidavit of desistance for said complaint;

8.That I am executing this affidavit to attest to the truth of all the foregoing

and to prove that I have no cause of action against Atty. Elerizza L. Meteoro. 6

On August 9, 2001, the IBP-CBD issued a Notice of Hearing requiring both parties to appear

before it on September 6, 2001. On said date, both parties appeared and agreed to settle their

misunderstanding. 7 On November 27, 2001, the parties agreed that the balance of P134,000.00

which respondent acknowledged as her indebtedness to complainant will be settled on a

staggered basis. Another hearing was then set for February 5, 2002. Respondent failed to

appear in said hearing despite due notice. It was then reset to February 28, 2002 with the order

that should respondent fail to appear, the case shall already be submitted for resolution. 8

Respondent appeared in the next two hearings. However, this time, it was complainant who

was unavailable. In the hearing of July 31, 2002, respondent was absent and was warned again

that should she fail to appear in the next hearing, the Commissioner shall resolve the case. On

said date, respondent did not appear despite due notice. On August 1, 2002, respondent filed

with the Commission a motion for reconsideration of the July 31 order stating that: she got sick

a few days before the scheduled hearing; she had already paid complainant the amount of

P64,000.00; in March of 2002, respondent’s father was admitted to the Intensive Care Unit of

the University of Santo Tomas Hospital thus she was not able to settle her remaining balance as

planned; and because of said emergency, respondent was not able to fully settle the balance of

her debt up to this date. Respondent prayed that she be given another 60 days from August 1,

2002 to finally settle her debt with complainant. 10

On April 30, 2003, the IBP-CBD issued an order granting respondent’s motion and setting

aside the order dated July 31, 2002. It noted that while respondent claims that she already paid

complainant P64,000.00, the photocopies of the receipts she submitted evidencing payment

amount only to P45,000.00. 11 A hearing was then set for May 28, 2003 at which time

respondent was directed to present proof of her payments to the complainant. The hearing was

however reset several times until August 20, 2003 at which time, only complainant appeared.

Respondent sent somebody to ask for a postponement which the commission denied. The

commission gave respondent a last opportunity to settle her accounts with complainant. The

hearing was set for October 7, 2003 which the commission said was

―intransferable.‖ 12 DEIHSa

On October 7, 2003, only complainant appeared. The commission noted that respondent was

duly notified and even personally received the notice for that day’s hearing. The case was

thereafter submitted for resolution. 13

On October 24, 2003, the Investigating IBP Commissioner Renato G. Cunanan submitted his

report pertinent portions of which read as follows:

The issue to be resolved is whether or not Atty. Elerizza A. Libiran-Meteoro

has committed a violation of the Code of Professional Responsibility. This

Office holds that she has. More particularly, the respondent, by initially and

vehemently denying her indebtedness to herein complainant and then

subsequently admitting liability by proposing a staggered settlement has

displayed a glaring flaw in her integrity. She has shown herself to possess poor

moral characters. In her motion for reconsideration, seeking the reopening of

this case, the respondent made a false assertion that she had settled up to

P64,000.00 of her indebtedness but the receipts she submitted total only

P50,000.00. What is more disconcerting is that while she is aware and duly

notified of the settings of this Office respondent has seemingly ignored the

same deliberately. Finally, the respondent has not offered any satisfactory

explanation for, nor has she controverted the complainant’s charge that she

(respondent) had tried to negotiate a transfer certificate of title (TCT) which

had been entrusted by a certain Dra. Helen Garcia to her relative to a

transaction which the former had with the Quedancor where respondent was

formerly employed. Based on all the foregoing findings and the deliberate

failure of the respondent to come forward and settle her accountabilities,

inspite of several warnings given her by the undersigned, and her failure to

attend the scheduled hearings despite due notice, this Office is convinced that

Atty. Elerizza Libiran-Meteoro has committed a glaring violation not only of

her oath as a lawyer but also the dictates of Canon 1, Rule 1.01 which

mandates that a worthy member of the Bar must constantly be of good moral

character and unsullied honesty. 14

He then recommended that Atty. Elerizza A. Libiran-Meteoro be suspended from the practice

of law for two years and meted a fine of twenty thousand pesos. 15

On October 29, 2003, respondent filed another motion for reconsideration stating that: she was

not able to receive the notice for the October 7 hearing because she was in Bicol attending to

pressing personal problems; she only arrived from the province on October 25, 2003 and it was

only then that she got hold of the Order dated October 7; from the very beginning, respondent

never intended to ignore the Commission’s hearings; as much as she wanted to pay

complainant in full, the financial crisis which hit her family since 2001 has gravely affected her

ability to pay; until that day, the expenses incurred by respondent due to the hospitalization of

her father has not been paid in full by her family; the family home of respondent in Cabanatuan

has already been foreclosed by the bank; respondent’s husband has been confined recently due

to thyroid problems and respondent herself had sought medical help on several occasions due to

her inability to conceive despite being married for more than five years; if not for said reasons,

respondent could have already paid the complainant despite respondent’s knowledge that the

amount complainant wanted to collect from her is merely the interest of her debt since she

already returned most of the pieces of jewelry she purchased and she already paid for those that

she was not able to return. Respondent prays that the resolution of the case be deferred and that

she be given another 90 days from said date or until January 19, 2003 to settle whatever

balance remains after proper accounting and presentation of receipts. 16

On February 27, 2004, the Board of Governors of the IBP passed a resolution as follows:

RESOLUTION NO. XVI-2003-67

CBD Case No. 01-840

Isidra Barrientos vs.

Atty. Elerizza A. Libiran-Meteoro

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, the Report and Recommendation of the Investigating

Commissioner of the above-entitled case, herein made part of this Resolution

as Annex ―A‖; and, finding the recommendation fully supported by the

evidence on record and the applicable laws and rules, with modification, and

considering respondent’s glaring violation not only of her oath as a lawyer but

of Rule 1.01, Canon 1 of the Code of Professional Responsibility, Atty.

Elerizza A. Libiran-Meteoro is hereby SUSPENDED from the practice of law

for six (6) months and Restitution of P84,000.00 to complainant. 17

We agree with the findings and recommendation of the IBP except as to the alleged matter of

respondent offering a transfer certificate of title to complainants in exchange for the bounced

checks that were in their possession.

We have held that deliberate failure to pay just debts and the issuance of worthless checks

constitute gross misconduct, for which a lawyer may be sanctioned with suspension from the

practice of law. 18 Lawyers are instruments for the administration of justice and vanguards of

our legal system. They are expected to maintain not only legal proficiency but also a high

standard of morality, honesty, integrity and fair dealing so that the people’s faith and

confidence in the judicial system is ensured. 19 They must at all times faithfully perform their

duties to society, to the bar, the courts and to their clients, which include prompt payment of

financial obligations. They must conduct themselves in a manner that reflect the values and

norms of the legal profession as embodied in the Code of Professional

Responsibility. 20 Canon 1 and Rule 1.01 explicitly states that:

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land

and promote respect for law and for legal processes.

Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct. HEDaTA

In this case, respondent in her answer initially tried to deny having any obligation towards

Isidra Barrientos. Upon appearing before the IBP-CBD, however, respondent eventually

acknowledged her indebtedness to Isidra in the amount of P134,000.00, promising only to pay

in a staggered basis. Her attempt to evade her financial obligation runs counter to the precepts

of the Code of Professional Responsibility, above quoted, and violates the lawyer’s oath which

imposes upon every member of the bar the duty to delay no man for money or malice. 21

After respondent acknowledged her debt to complainant, she committed herself to the payment

thereof. Yet she failed many times to fulfill said promise. She did not appear in most of the

hearings and merely submitted a motion for reconsideration on August 1, 2002 after the IBP-

CBD Commissioner had already submitted the case for resolution. She claimed that she got

sick days before the hearing and asked for sixty days to finally settle her account. Again, she

failed to fulfill her promise and did not appear before the Commission in the succeeding

hearings despite due notice. After the case was submitted anew for resolution on October 6,

2003, respondent filed another motion for reconsideration, this time saying that she was in the

province attending to personal matters. Again she asked for another ninety days to settle her

entire debt. This repeated failure on her part to fulfill her promise puts in question her integrity

and moral character. Her failure to attend most of the hearings called by the commission and

her belated pleas for reconsideration also manifest her propensity to delay the resolution of the

case and to make full use of the mechanisms of administrative proceedings to her benefit.

She also could not deny that she issued several checks without sufficient funds, which

prompted Isidra and Olivia to file complaints before the prosecutor’s office in Cabanatuan City.

Her only excuse is that she was able to replace said checks and make arrangements for the

payment of her debt, which led to the dismissal of the criminal complaints against her. We have

held that the issuance of checks which were later dishonored for having been drawn against a

closed account indicates a lawyer’s unfitness for the trust and confidence reposed on her. It

shows a lack of personal honesty and good moral character as to render her unworthy of public

confidence. 22 The issuance of a series of worthless checks also shows the remorseless attitude

of respondent, unmindful to the deleterious effects of such act to the public interest and public

order. 23 It also manifests a lawyer’s low regard to her commitment to the oath she has taken

when she joined her peers, seriously and irreparably tarnishing the image of the profession she

should hold in high esteem. 24

Mere issuance of worthless checks by a lawyer, regardless of whether or not the same were

issued in his professional capacity to a client, calls for appropriate disciplinary measures. As we

explained in Co vs. Bernardino: 25

The general rule is that a lawyer may not be suspended or disbarred, and the

court may not ordinarily assume jurisdiction to discipline him for misconduct

in his non-professional or private capacity. Where, however, the misconduct

outside of the lawyer’s professional dealings is so gross a character as to show

him morally unfit for the office and unworthy of the privilege which his

licenses and the law confer on him, the court may be justified in suspending or

removing him from the office of attorney. The evidence on record clearly

shows respondent’s propensity to issue bad checks. This gross misconduct on

his part, though not related to his professional duties as a member of the bar,

puts his moral character in serious doubt. . . 26 (Citations omitted).

She also claims that her father was hospitalized in March 2002 and that she and her husband

also had to seek medical help which greatly affected her ability to pay. She however did not

present any proof to substantiate such claims. She also did not appear personally before the

complainant and the commission, in spite of the many opportunities given her, to make

arrangements for the payment of her debt considering the circumstances that befell her family.

Instead, she waited until the case was submitted for resolution to allege such facts, without

presenting any proof therefor.

We cannot uphold the IBP in finding that since respondent has not offered any explanation for,

nor has she controverted the complainants’ charge that she tried to negotiate with them a

transfer certificate of title that had been entrusted to her by a client, she should be held liable

therefor. Basic is the principle that if the complainant, upon whom rests the burden of proving

her cause of action, fails to show in a satisfactory manner the facts upon which she bases her

claim, the respondent is under no obligation to prove her exception or defense. 27 Simply put,

the burden is not on the respondent to prove her innocence but on the complainants to prove her

guilt. In this case, complainants submitted a photocopy of a TCT in the name of Victoria

Villamar together with their letter-complaint, which according to complainants was the title

respondent tried, through her sister-in-law, to negotiate with them in exchange for the bounced

checks in their possession. 28 No other evidence or sworn statement was submitted in support

of such allegation. Respondent in her answer, meanwhile, denied having any knowledge

regarding such matter and no further discussion was made on the matter, not even in the

hearings before the commission. 29 For this reason, we hold that respondent should not be held

liable for the alleged negotiation of a TCT to complainants for lack of sufficient evidence, but

only for the non-payment of debts and the issuance of worthless checks which were sufficiently

proved and which respondent herself admitted.

We reiterate that membership in the legal profession is a privilege and demands a high degree

of good moral character, not only as a condition precedent to admission, but also as a

continuing requirement for the practice of law. 30 Accordingly, administrative sanction is

warranted by respondent’s misconduct. The IBP Board of Governors recommended that

respondent be suspended from the practice of law for six months. In Lao vs. Medel, 31 which

also involved non-payment of debt and issuance of worthless checks, the Court held that

suspension from the practice of law for one year was appropriate. Unlike in the Lao case

however, respondent is this case paid a portion of her debt, as evidenced by receipts amounting

to P50,000.00. Thus we deem that six months suspension from the practice of law and the

restitution of P84,000.00 to complainant Isidra Barrientos would be sufficient in this case.

WHEREFORE, Atty. Elerizza A. Libiran-Meteoro is found guilty of gross misconduct and is

hereby SUSPENDED for six months from the practice of law, effective upon her receipt of this

Decision, and is ordered to pay complainant Isidra Barrientos the amount of P84,000.00, as

balance of her debt to the latter, plus 6% interest from date of finality of herein decision.

Let copies of this Resolution be entered in the record of respondent and served on the IBP as

well as the court administrator who shall circulate herein Resolution to all courts for their

information and guidance. AISHcD

SO ORDERED.

TANU REDDI, complainant, vs. ATTY. DIOSDADO C. SEBRIO, JR., respondent.

D E C I S I O N

PER CURIAM p:

Tanu Reddi (complainant), an American citizen of Indian descent and a practicing endodontist

in New York, seeks the disbarment of Atty. Diosdado C. Sebrio, Jr. (respondent) for allegedly

deceiving her into giving him a total of US$3,000,000 for the purpose of, among other things,

purchasing several real estate properties for resale. DCSETa

From the records of the case, the following facts are gathered:

Taking after her parents who had been involved in various charitable activities in India,

complainant nurtured philanthropic desires of her own consisting primarily in opening a

hospital with modern facilities in an underdeveloped part of Asia. 1

Together with Immaculada Luistro (Immaculada), a Filipino citizen, 2 who was her assistant of

over 10 years, complainant visited the Philippines for the first time in 2000. Noting the level of

poverty in the country and the lack of medical services for the poor, 3 she decided to put up a

hospital. 4

Immaculada suggested to complainant to consider engaging in the real estate business in the

Philippines in order to speed up the generation of funds. 5 Heeding the suggestion, complainant

returned to the Philippines in 2003 to explore opportunities in the real estate business. 6

Complainant was introduced to respondent who would help her acquire real properties for

development and/or resale. Since she could not acquire ownership of lands in the Philippines,

respondent advised her to use corporate vehicles to effect the purchases. Three corporations

were thus formed — Tagaytay Twins, Inc., Manila Chic Twins, Inc., and Tanu, Inc. 7

By complainant's account, respondent cajoled her into buying several parcels of land located at

Tagaytay City, Las Piñas City, Makati City, Quezon City, and Pasay City. She related the

details surrounding the intended acquisition of property as follows:

Re the Tagaytay City Property

Respondent represented to complainant that his client Teresita Monzon (Teresita) owned an

untitled 27-hectare property located at Tagaytay City. Through the Tagaytay Twins, Inc.,

complainant and Teresita executed a Memorandum of Agreement dated March 21, 2003

(Tagaytay MOA) 8 prepared by respondent under which she agreed to finance the titling of the

property in the total amount of P20,000,000, and that once titled, the property would be offered

for sale, the proceeds of which would be divided equally between her and Teresita.

Complainant thereupon made staggered payments of US$1,000, P2,000,000, and US$36,360 to

Teresita. 9

Complainant was later to discover that 996 square meters of the 27-hectare property had been

purchased by Aldio Properties, Inc. in an extrajudicial foreclosure sale, which sale Teresita

challenged in an action for annulment before the Regional Trial Court of Tagaytay City. In said

action, respondent was Teresita's counsel of record. 10 cdasia2005

Re the Las Piñas City Property

Respondent offered to complainant the option to purchase a house and lot located at Las Piñas

City, which were encumbered by a mortgage, and which respondent represented as owned and

being sold by one Francisca Parales (Francisca) 11 to finance an urgently needed heart surgery

of her daughter. 12

On respondent's advice, complainant obtained a franchise to operate a Jollibee food outlet, with

the agreement that out of the profits that its operation would generate, she would get 50% while

respondent and Immaculada would share the remaining 50%. 13 Complainant thus sent

respondent sums of money for the acquisition of both the Las Piñas property and a franchise to

operate a Jollibee outlet. 14

Re the Makati City Property

Respondent introduced complainant to a certain Mario C. Mangco (Mangco), alleged legal

officer of the intestate estate of one Faustino Ramos (Ramos), which estate was alleged to be

the owner of a real property located at the consular area adjacent to Forbes Park in Makati

City. 15Complainant having been interested in acquiring the property, respondent prepared a

Memorandum of Agreement (Makati MOA) which she, together with Mangco, forged on

March 20, 2004. 16

Under the Makati MOA, complainant agreed to, as she did, release P10,000,000 representing

the cost of development and titling of the property, and payment of back taxes; and an

additional P2,000,000 for the execution of the Makati MOA.

Complainant was later to learn that the property was neither owned by the intestate estate of

Ramos nor for sale.

Re the Quezon City Property

Respondent broached to complainant the idea of buying the land on which SM North Mall in

Quezon City stands, he representing that it belongs to his client, purportedly a retired US Navy

employee who resides in Mindanao. 17 Complainant assented and transmitted large sums of

money to respondent for the purpose of, among other things, filing a petition for injunction

against SM North Mall, paying back taxes, and titling of the land. 18

Re the Pasay City Property

Complainant sent respondent hefty amounts of money for the purchase of a vacant lot located

along Roxas Boulevard in Pasay City, alleged to belong to Florenda Estrada (Florenda) and

Alma Mallari (Alma), but which was mortgaged to one Atty. Go to secure a loan of

P5,000,000. 19She also defrayed expenses, on the strength of respondent's representations, to

secure title to the lot, settle the mortgage obligation, relocate squatters on the lot, and bribe a

judge to "close the transaction". 20 ACaDTH

Complainant subsequently discovered that there was no such vacant lot along Roxas Boulevard

in Pasay City; instead, she found out that the "vacant lot" referred to was titled in the names of

Philippine Bank of Communications (PBC) and Banco De Oro Universal Bank (BDO). 21

In light of the foregoing developments, complainant's counsel, by letter dated December 19,

2005, 22 demanded from respondent the return of the amount of US$3,000,000, claimed to be

part of the total sum of money she had sent to him for all the transactions that did not come

about. No amount has been returned to complainant.

Hence, spawned the filing on January 27, 2006 23 of the present complaint for disbarment

against respondent.

By his Comment, respondent admits receiving a total of US$544,828 from

complainant 24 which amount he claims was used not only for the purchase of the Las Piñas

property and discharge of the mortgage thereon, but also for the setting up of the earlier

mentioned corporations, as well as for the downpayment on the Makati property and related

expenses. 25

Respondent likewise admits having represented to complainant that the Las Piñas City property

belonged to one Francisca, 26 certificate of title to which and the corresponding deed of sale

signed by Francisca, by his claim, are in his possession; but the title has not been transferred to

Tanu, Inc., as agreed, in view of complainant's failure to provide the money needed therefor, he

adding that he is also exercising his retaining lien over the Las Piñas documents. 27

Specifically with respect to the Makati property, respondent claims having paid P500,000 to

Mangco representing initial payment 28 thereof.

Regarding the Tagaytay City property, respondent admits that the Tagaytay MOA exists, and

avers that it is complainant who wants to get out of a perfected sale in order to recover her

partial payment amounting to approximately P4,000,000. 29

With respect to the Quezon City property, respondent states that he is willing to surrender all

the documents pertaining thereto, but would do so only if complainant is first ordered to pay

him his professional fees. 30

As for the Pasay City property, respondent denies complainant's claims thereon as mere

"preposterous allegations".

Following the filing by complainant of her Reply, the Court referred the case to the Integrated

Bar of the Philippines (IBP) for investigation, report and recommendation/decision by

Resolution of January 22, 2007. 31

At the mandatory conference scheduled by the IBP Commission on Bar Discipline on

September 13, 2007 before Commissioner Lolita A. Quisumbing (the

Commissioner), 32 respondent failed to appear despite notice. He instead sent a representative

who sought a resetting as, allegedly, respondent was in Ilocos attending to an important family

matter. 33 The Commissioner, finding respondent's absence inexcusable, given that he had

ample time to file a motion for resetting but he did not, considered respondent to have waived

his right to participate in the proceedings. 34 Complainant thereupon presented evidence ex-

parte and submitted her position paper. 35

In her Report and Recommendation 36 submitted to the IBP Board of Governors on December

14, 2007, the Commissioner found respondent to have committed fraudulent acts which

constitute violations of the lawyer's oath and numerous provisions of the Code of Professional

Responsibility (CPR), viz.:

1.Respondent violated CANON 1 which states: "A lawyer shall uphold the

Constitution, obey the laws of the land and promote respect for the law

and for legal processes."

Respondent committed estafa punishable under Art. 315 of the Revised Penal

Code. With unfaithfulness and abuse of confidence, he misappropriated

millions of pesos which was [sic] given to him on his misrepresentation that

such were needed for the acquisition of the aforementioned properties.

Respondent also committed an unlawful act (i.e., falsification as part of his

fraudulent scheme) when he tampered with the Articles of Incorporation of

Tanu, Inc.. A perusal of the Articles of Incorporation given by respondent to

complainant shows that the incorporators are Tanu Reddi, Michael Lee,

Prasuna Reddy, Ahalya Devi, and Robert Juntilla. When complainant obtained

a copy of the same in September 2005, she discovered that other names were

inserted. The names of respondent, Clarito D. Cardozo, Brian Pellazar, and

Michael Angelo Lopez were intercalated. (Exhibit "W")

2.He likewise violated Rule 1.01 of the CPR which provides: "A lawyer shall

not engage in unlawful, dishonest, immoral or deceitful conduct."

He engaged in unlawful, dishonest and deceitful conduct when he offered

properties for sale to complainant on the misrepresentation that complainant

was dealing with the true owners thereof. This is very clear from the

documents he asked complainant to sign; namely, the Memorandum of

Agreement (Exhibit "D") for the Tagaytay property, Deed of Conditional Sale

(Exhibit "U") for the Pasay City property, and Memorandum of Agreement

(Exhibit "M") for the Makati City property. The certificates of title, tax

declaration and other documents obtained by complainant from the various

government agencies reveal that all these properties aforementioned were

eitherfictitious, not susceptible to sale, simulated, or inexistent.

3.Respondent violated Canon 16 and Rule 16.01 of the CPR which state:

"CANON 16 — A lawyer shall hold in trust all moneys and properties of his

client that may come into his possession.

Rule 16.01 — A lawyer shall account for all money or property collected or

received for or from the client."

He failed to account for the sums of money he received from complainant and

failed to return the same upon demand. (Copy of demand letter dated 19

December 2005, Exhibit "T")

4.Respondent violated Rule 15.06 of the CPR which provides:

"A lawyer shall not state or imply that he is able to influence any public

official, tribunal or legislative body."

He convinced complainant to pay bribe money to our judges since, he claims,

that it is a common practice in the Philippines. 37(Underscoring supplied)

The Commissioner thus recommended that respondent be disbarred; that his name be ordered

stricken from the roll of attorneys; and that he be ordered to return the total amount of

US$3,000,000 to complainant. By Resolution of January 17, 2008, 38 the IBP Board of

Governors adopted and approved the Report and Recommendation of the Commissioner, with

the modification that respondent was ordered to return only the admitted amount he received

from complainant (US$544,828), without prejudice to complainant's recovery of the other

amounts claimed in the appropriate forum. cdrep

The Court sustains the IBP Board of Governors, except its findings/conclusion that respondent

committed estafa and falsification. This is not the proper forum to determine whether he

committed these offenses.The Court finds, however, that respondent's dishonest and deceitful

conduct with respect to the intended transactions, real property acquisitions which turned out to

be bogus, is sufficiently established.

It bears emphasis that respondent admits having received from complainant at least

US$544,828. He claims, however, that the amount was used for the purchase of the Las Piñas

property and the discharge of the mortgage thereon, the setting up of the corporations earlier

mentioned, and the downpayment on the Makati property and related representation expenses

therefor. The Court finds that the claim does not lie.

All that respondent presented to account for the money is a handwritten acknowledgment of a

supposed partial payment of P500,000 for the Makati property, purportedly executed by one

Mangco. 39 By any standard, this document is a mere piece of paper, Mangco not having been

presented, if he exists at all, to confirm that he indeed issued the receipt. Since respondent

failed to credibly account, upon demand, for the money held by him in trust — an element of

misappropriation 40 — complainant's claim that respondent employed deceit on her is

established.

Respondent's culpability is further highlighted by his utter lack of regard for the seriousness of

the charges against him. His defenses raised in his Comment consist mainly in bare denials.

When the integrity of a member of the bar is challenged, it is not enough that he denies the

charges against him; he must meet the issue and overcome the evidence against him. 41 He

must show proof that he still maintains that degree of morality and integrity which at all times

is expected of him. 42 This, respondent miserably failed to do.

Respondent's justification for his non-presentation of any documents to substantiate the so-

called property acquisitions — that he is exercising his retaining lien over them as, allegedly,

his professional fees have not been paid — is incredible.

If those documents actually exist, and considering that his license to practice law is on the line,

respondent could have readily attached even photocopies thereof to his Comment in order to

lend a semblance of credibility to his claim. His "retaining lien" claim remains just that. Worse,

it only amounts to an admission that he acted as counsel for complainant; yet, he completely

failed to show that in his dealings on her behalf, he put her interests before his. cTDIaC

As to the recommended penalty of disbarment, the Court finds the same to be in order.

Section 27, Rule 138 of the Rules of Court provides:

A member of the bar may be disbarred or suspended from his office as

attorney by the Supreme Court for any deceit, malpractice, or other gross

misconduct in such office, grossly immoral conduct, or by reason of his

conviction of a crime involving moral turpitude, or for any violation of the

oath which he is required to take before admission to practice, or for a willful

disobedience of any lawful order of a superior court, or for corruptly or

willfully appearing as an attorney for a party to a case without authority to do

so. . . . .

To reiterate, by his own admission, respondent received a total of US$544,828 from

complainant, which he could not properly account for. The orchestrated manner in which he

carried out his fraudulent scheme, in connivance with other persons, and by taking advantage of

complainant's naivete in the workings of the real estate business in the Philippines, depict a

man whose character falls way, way short of the exacting standards required of him as a

member of the bar and an officer of the court. Thus, respondent is no longer fit to remain as

such.

The Court is mindful that disbarment is the most severe form of disciplinary sanction and, as

such, the power to disbar must always be exercised with great caution, and only for the most

imperative reasons and in clear cases of misconduct affecting the standing and moral character

of the lawyer as an officer of the court and a member of the bar. 43 If the practice of law,

however, is to remain an honorable profession and attain its basic ideals, those enrolled in its

ranks should not only master its tenets and principles but should also, in their lives, accord

continuing fidelity to them. 44 The requirement of good moral character is, in fact, of much

greater import, as far as the general public is concerned, than the possession of legal

learning. 45

The Court also sustains the order of the IBP for respondent to return only the amount of

US$544,828. While complainant submitted documents showing her bank remittances involving

different sums of money, some of these remittances were not made in the name of

respondent. 46 And as complainant herself declares, the amount of US$3,000,000 is a

mere estimate of her total claim. 47 Thus, only the return of the admittedamount of

US$544,828 is in order. As reflected above, complainant is not precluded from litigating her

claim for any balance due her in the proper forum. ADaSET

WHEREFORE, respondent Diosdado C. Sebrio, Jr. is DISBARRED, and his name is

ORDERED STRICKEN from the Roll of Attorneys. He is ORDERED TO RETURN to

complainant the amount of US$544,828. Let a copy of this Decision be entered in his record as

a member of the Bar; and let notice of the same be served on the Integrated Bar of the

Philippines, and on the Office of the Court Administrator for circulation to all courts in the

country.

SO ORDERED.

WILHELMINA C. VIRGO, complainant, vs. ATTY. OLIVER V. AMORIN, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J p:

Before the Court is a Petition filed by Atty. Oliver V. Amorin (Atty. Amorin) seeking the

reversal of the Resolution of the Integrated Bar of the Philippines (IBP) Board of Governors

dated February 6, 2008, suspending him from the practice of law for one year. ScCDET

Wilhelmina Virgo (complainant) filed with the IBP a Complaint for disbarment against Atty.

Amorin dated September 11, 2006 before the IBP Committee on Bar Discipline (CBD),

alleging, as follows: She and her husband (collectively referred to as "Virgos") owned a house

in Loyola Grand Villas (the Virgo Mansion) situated on two lots 1 which Atty. Amorin offered

to buy in 1996. They agreed at the price of P45,000,000.00 (P45M) with the Virgos retaining

the certificates of title so that Atty. Amorin could borrow from banks using the name of

complainant who had a good credit standing. Atty. Amorin was kind and accommodating and

offered to be complainant's legal consultant on several occasions free of charge. Complainant

fully trusted Atty. Amorin, and the latter prepared Deeds of Sale bearing different amounts

which the Virgos signed. Of the P45M price, however, Atty. Amorin only paid P20M, P10M of

which came from loans made by complainant using the property as collateral. In April 1998,

Atty. Amorin issued three checks 2 to cover the balance of P25M, which checks, however,

were dishonored because the payments were stopped or had insufficient funds. Atty. Amorin

also intentionally altered his signature on the checks. Complainant made several demands on

Atty. Amorin to no avail; thus, she filed estafa and Batas Pambansa (B.P.) Blg. 22 cases against

him on February 1, 2002. 3 Atty. Amorin in turn filed one civil 4 and nine criminal

cases 5 against complainant which damaged her good business reputation and credit standing. 6

Atty. Amorin filed an Answer 7 denying the charges against him and claiming that complainant

only filed the complaint against him because of the reversals in complainant's court cases

against him. He also asserts that assuming that the accusations of complainant are true, such are

not grounds for disbarment, not being related to his professional conduct but at most are merely

bases for civil action, in this case Civil Case No. Q-01-45798 pending before Branch 221,

Regional Trial Court, Quezon City (RTC-QC).

Atty. Amorin avers: The property was not sold to him personally but to Loveland Estate

Developers, Inc. (LEDI) of which he is the President. Complainant did not mention in her

complaint that the property is involved in three other cases: (1) Civil Case No. Q-01-

45798 9 pending before RTC-QC Branch 221, (2) LRC Case No. Q-15382 (02) 10 before

RTC-QC Branch 216, and (3) CA-GR SP No. 77986 11 before the Court of Appeals (CA). In

CA-GR SP No. 77986, the CA found that the Virgos, in bad faith, received P12M from the

Bank of the Philippine Islands (BPI) after having been already paid by him. The Virgos no

longer own the property, as they have already sold the same to LEDI through the Deed of

Absolute Sale with Assumption of Mortgage for the lot covered by Transfer Certificate of Title

(TCT) No. 25894, the Deed of Absolute Sale for the lot covered by TCT No. 26376 and the

Deed of Absolute Sale with Assumption of Mortgage which consolidates the two previous

deeds of sale. It is not true that they agreed on the price of P45M, as shown by a copy of the

affidavit of Antonio Virgo, complainant's husband, and the receipts for the commissions of

complainant's real estate broker. The truth is that as early as 1994, the property was being sold

for P20M, but there were no buyers so complainant lowered the price to P15M, of which P10M

was paid by him with a Far East Bank and Trust Co. (FEBTC) Check 12 dated May 28, 1996;

the amount of P2M with FEBTC Check 13 dated June 3, 1996; and for the balance, by

assuming complainant's loan from FEBTC for P3million. 14 aHSCcE

Atty. Amorin further alleges: He and complainant used to have cordial relations, but he never

offered her legal services. He gave complainant the deeds of sale so she could have them

notarized and have the assumption of loan approved by FEBTC. Said loan, which complainant

obtained without his knowledge and consent and using the house and lots as collateral, was for

her own benefit and this was the transaction which the CA condemned. It is also not true that

he paid complainant P25million in April 1998 with three checks. Complainant stole 3 blank

checks from him and forged the same which was his basis for filing falsification and perjury

cases against complainant. He did not file said cases in order to threaten her, as he filed them

earlier than IS No. 02-1551 — the estafa and B.P. Blg. 22 case which complainant filed against

him.

A Mandatory Conference was held before the IBP Investigating Commissioner on March 16,

2007, and both parties and their respective counsels appeared. 16 Thereafter, the parties

submitted their position papers reiterating their arguments. In her Position Paper, complainant

asserts that the attorney-client relationship that existed between her and Atty. Amorin are

shown by the letters of Atty. Amorin to her, one of which clearly states that Atty. Amorin has

given her and her husband legal services and consultations for free. 17 Atty. Amorin in his

Memorandum meanwhile insists that there is no lawyer-client relationship between them, since

there was no specific case or transaction in which he represented her or gave her professional

advice. 18 Complainant filed a Reply arguing that the fact that the legal advice given by Atty.

Amorin was for free is immaterial, since lawyering does not confine itself to actually handling

a case, but includes giving legal advice through consultations. 19Complainant also filed a

Supplement to Reply to Respondent's Memorandum pointing out that CA-GR SP No. 77986

repeatedly referred to by Atty. Amorin does not include her as a party; thus, she was not given

any opportunity to explain her side. 20

Atty. Salvador B. Hababag, Commissioner of the IBP-CBD, submitted his Report dated

January 7, 2008 finding Atty. Amorin guilty of misconduct and recommending his suspension

from the practice of law for six months.

Commissioner Hababag found that: Atty. Amorin used his legal knowledge and training to

induce complainant to part with her property; Atty. Amorin admitted preparing three deeds of

sale, but denies the existence of a fourth one which complainant claims to embody their real

intent as to the purchase price; this was Atty. Amorin's scheme to defraud not only complainant

but also the government of its taxes from the sale; Atty. Amorin failed to fulfill his promise to

pay the purchase price in cash and to pay the P25 million balance, issuing three postdated

checks which were dishonored, however, due to insufficient funds; Atty. Amorin also

intentionally altered his signature on the checks and when complainant tried to collect the

balance, Atty. Amorin filed several cases to harass her; Atty. Amorin violated Rule 1.02 of the

Code of Professional Responsibility, which provides that "A lawyer shall not counsel or abet

activities aimed at defiance of the law or at lessening confidence in the legal system" and Rule

1.01 of the CPR, which states "A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct"; finally, complainant was not a party to CA-GR SP No. 77986; thus, she was

not able to defend herself and introduce evidence on her behalf. 21 DHITcS

On February 6, 2008, the IBP Board of Governors passed RESOLUTION NO. XVIII-2008-77,

CBD Case No. 06-1829, to wit:

Wilhelmina C. Virgo vs. Atty. Oliver V. Amorin

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously

ADOPTED and APPROVED, with modification, the Report and

Recommendation of the Investigation Commissioner of the above-entitled

case, herein made part of this Resolution as Annex "A"; and finding the

recommendation fully supported by the evidence on record and the applicable

laws and rules, considering Respondent's violation of Canon 1, Rule 1.01 and

Rule 1.02 of the Canons of Responsibility when he used his legal knowledge

and training to induce complainant to part with her property and eventually

defraud her in the process, Atty. Oliver V. Amorin is

hereby SUSPENDED from the practice of law for one (1) year. 22

Atty. Amorin is now before the Court assailing the IBP Resolution, raising the main issue:

whether or not there is sufficient evidence to support the finding of

[Complainant] that [Atty. Amorin] violated Canon 1, Rule 1.01 and Rule 1.02

of the Canons of Professional Responsibility when he used his legal

knowledge and training to induce [complainant] to part with her property and

eventually, defraud her in the process

and two sub-issues:

whether or not the Decision dated September 7, 2004 of the Court of Appeals

in CA-GR SP No. 77986 Loveland Estate Developers, Inc. etc. vs. Hon. Ofelia

Arelano Marquez, et al. can serve as evidence against [complainant]; and

whether or not public respondent (Board of Governors, IBP Commission on

Bar Discipline) can legally decide the complaint of (Virgo) based on alleged

facts which are the subject of Civil Case No. Q-01-45798, Loveland Estate

Developers, Inc. vs. BPI Leasing and Finance Corporation, Ricky Sunio, Fred

Galang, Danilo T. Reyes, Antonio L. Virgo, Wilhelmina Virgo and the

Registry of Deeds of Quezon City, still pending before Branch 221 of the

Regional Trial Court in Quezon City.

Atty. Amorin argues that: the IBP Commissioner's Report which the IBP Board of Governors

adopted is based solely on the pleadings and documents of complainant which are self-serving

and unsupported by official documents; the findings of fact of the IBP crumble when arrayed

against the CA Decision dated September 7, 2004 in CA-GR SP No. 77986 which found

complainant to have acted in bad faith; his evidence, consisting primarily of the CA Decision in

CA-GR SP No. 77986 and the sworn statement of complainant's own husband show the

opposite of the IBP's findings of facts, i.e., it was complainant who committed fraud and deceit

against him; both documents show that complainant used the property which she already sold

to him, as collateral for a new loan of P12M from the BPI; the Counter-Affidavit of Antonio

Virgo, as one of the respondents in IS No. 17683, an Estafa and B.P. Blg. 22 case, stated that he

and his wife sold the Virgo Mansion to Atty. Amorin for P15M to be paid with FEBTC checks

and the assumption of the balance of the complainant's loan with FEBTC; although

complainant is not a respondent in CA-GR SP No. 77986, said case is admissible as evidence

against her, since the CA case was derived from two other cases in the RTC; Civil Case No. Q-

01-45798 and LRC Case No. Q-1538 (02); complainant is a private respondent in Civil Case

No. Q-01-45798 pending before Branch 221 of RTC-QC. Atty. Amorin also argues that the

facts which are used by the IBP as the basis for placing Atty. Amorin under suspension from

the practice of law for one year are the facts in litis in said case; thus, it is premature and

improper for the IBP to render the herein assailed Resolution, as it will preempt the findings

and decision that the RTC will render in the civil case. HSaIDc

Complainant filed her Comment reiterating her arguments before the IBP and adding that her

husband's affidavit, which is being invoked by Atty. Amorin in his Petition, cannot be

considered as impartial since she and her husband have not been in good terms after she filed a

criminal case for concubinage against him, for which he was found guilty by the trial court.

The Court finds the petition to be with merit.

First, the existence of an attorney-client relationship between Atty. Amorin and complainant

was not established.

An attorney-client relationship is said to exist when a lawyer acquiesces or voluntarily permits

the consultation of a person, who in respect to a business or trouble of any kind, consults a

lawyer with a view of obtaining professional advice or assistance. It is not essential that the

client should have employed the lawyer on any previous occasion or that any retainer should

have been paid, promised or charged for; neither is it material that the attorney consulted did

not afterward undertake the case about which the consultation was had, for as long as the

advice and assistance of the attorney is sought and received in matters pertinent to his

profession. 23

There are instances, however, when the Court finds that no attorney-client relationship exists

between the parties, such as when the relationship stemmed from a personal transaction

between them rather than the practice of law of respondent or when the legal acts done were

only incidental to their personal transaction. 24

In trying to prove that there exists an attorney-client relationship between them, complainant

attached to her Position Paper four letters and a Memorandum of Agreement drafted by and

sent to them by Atty. Amorin. As to the first letter dated October 14, 1998, complainant argues

that the part in the letter which states:

As to why you did this to us (Amorins), inspite of all the favors my wife and I

have given you, the free legal services and consultations granted you without

any consideration or expectation of any renumeration. 25

should be considered as proof that there exists an attorney-client relationship between them.

Reading the letter in its entirety, especially the preceding paragraph, to wit: DaESIC

Incidentally, we have been informed by our bank, United Coconut Planter's

Bank, Diliman Branch, to the effect that you attempted to encash three (3)

checks allegedly issued to me. They did not honor the three checks in the total

amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) as the

signature appearing therein was not my own signature. As to why this

happened is beyond my comprehension, knowing as you do that we do not

have any obligation with you. On the contrary, you are the one who owe us

TWO MILLION TWO HUNDRED FORTY THOUSAND PESOS, which we

previously encash but the two checks bounced.

would show however that Atty. Amorin was confronting complainant about her act of using

the subject property as a collateral for a P12M loan from the FEBTC when she and her

husband had already sold the property to LEDI. Rather than confirming any attorney-client

relationship between them, the said paragraph, if read in its full context, actually conveys

Atty. Amorin's frustration over what he felt was an act of betrayal on complainant's part

despite the free legal services and consultations he had extended to complainant without

any consideration or expectation of any remuneration. Read in this light, the Court cannot

appreciate such statement as proof that an attorney-client relationship existed between

them.

Complainant also attached other letters sent by respondent, dated July 6, 1999, 26 December

17, 1999 27 and an undated one, 28 plus a draft Memorandum of Agreement, 29 which talk

about the complainant's property in Tanay, its excavation for possible hidden treasure, their

supposed sharing in the expenses and Atty. Amorin's interest in buying the said property.

Rather than bolstering complainant's claim that there exists an attorney-client relationship

between them, such letters actually strengthen the idea that the relationship of complainant and

Atty. Amorin is mainly personal or business in nature, and that whatever legal services may

have been rendered or given to them by Atty. Amorin for free were only incidental to said

relationship. Noteworthy also is the fact that complainant was not able to specify any act or

transaction in which Atty. Amorin acted as her or her husband's counsel.

Second, Atty. Amorin has pointed out and complainant does not deny, the existence of other

cases related to the present disbarment case. Civil Case No. 01-45798, pending before RTC-QC

Branch 221, a case for Annulment of Real Estate Mortgage and Foreclosure Proceedings with

Damages, Temporary Restraining Order and/or Preliminary Injunction and Preliminary

Attachment, filed by LEDI against BPI Leasing and Finance Corp., its officers, the Registrar of

Quezon City and the Virgos, assail the foreclosure by BPI of the Virgo Mansion which LEDI

claims to have already been sold by the Virgos to them. In claiming ownership of the property,

LEDI necessarily has to raise factual matters pertaining to the sale by the Virgos of the property

to them, such as the actual selling price, the validity of the deeds of sale, and the terms of

payment, which are inextricably intertwined with the present disbarment case. 30 cDIHES

LRC Case No. Q-15382 (02), a petition for the issuance of writ of possession filed by the BPI

before RTC QC Br. 216 seeks to foreclose the Virgo Mansion, which complainant and her

husband mortgaged to BPI in 1998, 31 while CA-GR SP. No. 77986 is a petition

for certiorari and prohibition asking the CA to stop the judge therein from enforcing the writ of

possession issued pursuant to LRC Case No. Q-15382. 32

While it is true that disbarment proceedings look into the worthiness of a respondent to remain

as a member of the bar, and need not delve into the merits of a related case, the Court, in this

instance, however, cannot ascertain whether Atty. Amorin indeed committed acts in violation

of his oath as a lawyer concerning the sale and conveyance of the Virgo Mansion without going

through the factual matters that are subject of the aforementioned civil cases, particularly Civil

Case No. 01-45798. As a matter of prudence and so as not to preempt the conclusions that will

be drawn by the court where the case is pending, the Court deems it wise to dismiss the present

case without prejudice to the filing of another one, depending on the final outcome of the civil

case.

WHEREFORE, Resolution No. XVIII-2008-77 dated February 6, 2008 of the Integrated Bar of

the Philippines is REVERSED and SET ASIDE, and the administrative case filed against Atty.

Oliver V. Amorin docketed as A.C. No. 7861 is DISMISSED without prejudice.

SO ORDERED.

ATTY. VICTORIANO V. OROCIO, petitioner, vs. EDMUND P.

ANGULUAN, LORNA T. DY and NATIONAL POWER

CORPORATION, respondents.

D E C I S I O N

CHICO-NAZARIO, J p:

Before Us is a Petition 1 for Review on Certiorari under Rule 45 of the Rules of Court seeking

to set aside the Resolution 2 dated 31 October 2006, Decision 3 dated 29 January 2007, and

Resolution 4 dated 27 September 2007, of the Court of Appeals in CA-G.R. SP Nos. 95786 and

95946.

The facts culled from the records are as follows:

On 26 September 1978, the National Power Corporation Board of Directors (NAPOCOR

Board), pursuant to its specific power and duty to fix the compensation, allowance and benefits

of the NAPOCOR employees under Section 6 (c) of Republic Act No. 6395, as amended,

passed Resolution No. 78-119 approving the grant of a monthly welfare allowance equivalent

to 10% of an employee's basic pay to all NAPOCOR employees effective 1 October

1978. 5 Pursuant thereto, the NAPOCOR Welfare Plan Committee, renamed and reconstituted

later on as the NAPOCOR Welfare Fund Board of Trustees (NAPOCOR-WFBT), issued and

promulgated a charter for the NAPOCOR Welfare Fund which includes the following

provisions:

ARTICLE VII

TERMINATION/AMENDMENT OF THE PLAN

"Section 1.Termination/Amendment of the Plan. — The Board of Directors

may amend, revise, repeal any or all of the provisions herein contained and/or

terminate the Plan, subject to the pertinent provisions of the Trust Agreement.

Section 2.Payment of Member's share. — In the event of termination of the

Plan, the balance to the credit of each member and the General Reserve for

Employee Benefits shall be paid to the members in full. The accumulated

amount in the General Reserve for Employee Benefits shall be distributed

among the members in the proportion to the amount outstanding to their credit

as of the time of termination. 6

The NAPOCOR Board subsequently passed Resolution No. 82-172 fixing a NAPOCOR

employee's contribution to the NAPOCOR Welfare Fund in a sum equivalent to 5% of his basic

pay. 7

Almost two decades thereafter, on 8 June 2001, Congress passed Republic Act No. 9136,

otherwise known as the Electric Power Industry Reform Act (EPIRA). EPIRA directed the

restructuring of the power industry which includes the reorganization of NAPOCOR.

Following the directive of EPIRA, the NAPOCOR Board passed Resolution No. 2003-43 on 26

March 2003 abolishing the NAPOCOR Welfare Fund Department and other departments, and

dissolving the NAPOCOR Welfare Fund upon the effectivity of EPIRA on 26 June

2001. 8 Consequently, some of the employees in the NAPOCOR Welfare Fund Department

and in other departments (who were also members of the NAPOCOR Welfare Fund) resigned,

retired or separated from service. Thereafter, the liquidation and dissolution process for the

NAPOCOR Welfare Fund commenced. SacTAC

On 11 May 2004, the NAPOCOR-WFBT, with authority from the Commission on Audit,

approved Resolution No. 2004-001 authorizing the release of P184 million (which represented

40% of the liquid assets of NAPOCOR Welfare Fund in the total amount of P462 million as of

16 April 2004) for distribution to the NAPOCOR Welfare Fund members who resigned,

retired, or separated upon the effectivity of EPIRA on 26 June 2001 (EPIRA separated

members). 9

Pursuant to Resolution No. 2004-001, herein respondent Edmund P. Anguluan (Anguluan),

as Ex-Officio Chairman of NAPOCOR-WFBT, issued a memorandum on 17 May 2004 to

implement the release of P184 million only to the EPIRA separated members to the exclusion

of the NAPOCOR employees (who were also members of the NAPOCOR Welfare Fund) who

have resigned, retired, or separated prior to the effectivity of EPIRA (non-EPIRA separated

members). 10 ECaITc

This prompted Mrs. Perla A. Segovia (Segovia), former Vice-President of Human Resources

and Administration and former Ex-Officio Chairman of the NAPOCOR-WFBT, in behalf of

the 559 non-EPIRA separated members and in her own personal capacity, to write a letter to

Mr. Rogelio M. Murga, then NAPOCOR President, demanding their equal shares in the

remaining assets of the NAPOCOR Welfare Fund and access to information and records

thereof. 11

On 13 July 2004, there being no action or response on her letter, Segovia, together with Mrs.

Emma C. Baysic (Baysic), former President of the NAPOCOR Employees Association and

former member of the NAPOCOR-WFBT, in their personal capacities and on behalf of the 559

non-EPIRA separated members, filed with the Quezon City Regional Trial Court (RTC),

Branch 217, a Petition for Mandamus, Accounting and Liquidation with a Prayer for the

Issuance of Temporary Restraining Order and Injunction against respondents NAPOCOR, the

NAPOCOR Board, Anguluan (as NAPOCOR Vice-President, Human Resources,

Administration and Finance Department) and Lorna T. Dy (as NAPOCOR Senior Department

Manager on Finance). 12 The Petition was docketed as Civil Case No. Q04-53121. ADaSEH

Segovia, Baysic and the 559 non-EPIRA separated members were represented in Civil Case

No. Q04-53121 by petitioner Atty. Victoriano V. Orocio under a "Legal Retainer

Agreement" 13 dated 1 September 2004, pertinent portions of which are reproduced below:

SUBJECT:Petition for Mandamus with Damages Temporary Restraining

Order/Injunction, etc. with the Court "NPC RETIREES versus

NPC, NP Board of Directors, et al. before the RTC Quezon

City for the payment/settlement of their claims for NPC

Welfare Fund (P462 Million assets and other assets liquid or

non-liquid). ACIESH

Dear Ms. Segovia and Ms. Baysic:

In connection with the above-stated subject, hereunder are our terms and

conditions, to wit:

1.No acceptance fee;

2.All costs of litigation ([filing] and docket fees, etc.), miscellaneous and out-

of-pocket expenses the prosecution of said action shall be for the account of

the clients;

3.No appearance/meeting fee;

4.Contingency or success fees of fifteen percent (15%) of whatever

amounts/value of assets (liquid and/or non-liquid) are recovered; TcSaHC

5.This Retainer Agreement serves as Legal Authority for the Law Firm to

receive and/or collect its contingency/success fee without further demand.

On 22 February 2006, the parties in the above-mentioned case, duly assisted by their respective

counsels, executed a Compromise Agreement14 whereby they agreed to amicably settle their

dispute under the following terms and conditions:

COMPROMISE AGREEMENT

xxx xxx xxx

WHEREAS, the parties have agreed to settle the instant case amicably.

PREMISES CONSIDERED, the parties herein have agreed as

follows: DcICEa

1.Both the NPC EPIRA separated members (those members of the Welfare

Fund affected by the EPIRA law and ceased to be members of the Welfare

Fund anytime from June 26, 2001 [effectivity of the EPIRA LAW] to March

1, 2003 [implementation of the EPIRA law and date of abolition of the

Welfare Fund]) and NPC non-EPIRA separated members (those who ceased to

be members of the Fund prior to June 26, 2001) are entitled to "Earnings

Differential" of the NPC Welfare Fund;

2."Corrected Earnings Differential" refers to a benefit which is a result of re-

computation of Member's Equity Contributions and Earnings using the correct

rates of return vis-à-vis what was used when they were separated. Period

covered by the discrepancy is from 1989 to 2003. Hence, affected are WF

members separated anytime within the period 1989 to 2003; ESCcaT

xxx xxx xxx

4.The Corrected Earnings Differential of all affected WF separated members

shall earn 6% legal interest per annum computed from the separation of the

members from service up to March 31, 2006 for all the non-EPIRA separated

members and May 31, 2006 for the EPIRA separated members;

5.As of March 2006, the estimated Corrected Earnings Differential for the

non-EPIRA separated members is P119.196 Million while for the EPIRA

separated members is P173.589 Million or a total of P292.785 Million,

inclusive of the 6% legal interest;

6.In conformity with the Retainer Agreement dated September 1, 2004

between Mrs. Perla A. Segovia, Mrs. Emma Y. Baysic and Atty. Victoriano V.

Orocio; and Irrevocable Special Power of Attorney dated July 20, 2005

executed by Mrs. Perla A. Segovia and Mrs. Emma Y. Baysic in favor of Atty.

Victoriano V. Orocio, counsel for petitioners, (copies attached as Annexes "A"

and "B" respectively), 15% attorney's fees shall be deducted from the

corresponding Corrected Earnings Differential of those non-EPIRA separated

members who have already executed the corresponding Special Power of

Attorney/Written Authority for the deduction/payment of said attorney's fees,

and shall be paid to V.V. Orocio and Associates Law Office, represented by

Atty. Victoriano V. Orocio, as compensation for his legal services as counsel

for the non-EPIRA separated members subject to deduction of applicable

taxes;

xxx xxx xxx

15.The parties herein shall exert their best effort in order that the terms and

conditions of this agreement are implemented and complied with in the spirit

of fairness, transparency and equity;

16.This Agreement is not contrary to law, good customs, public order or

public policy and is voluntarily entered into by the parties of their own free

will.

The parties filed with the RTC the very next day, 23 February 2006, a Joint Motion before the

RTC for the approval of their Compromise Agreement. 16 The RTC rendered a Decision on 3

April 2006 granting the parties' Joint Motion and approving the said Compromise

Agreement.17 TCSEcI

On 10 April 2006, petitioner filed with the RTC a Motion for Approval of Charging

(Attorney's) Lien. Petitioner asked the RTC to issue an order declaring him entitled to collect

an amount equivalent to 15% of the monies due the non-EPIRA separated members as his

attorney's fees in conformity with the Compromise Agreement. 18 In an Order dated 15 May

2006, the RTC granted petitioner's motion and decreed that he is entitled to collect the amount

so demanded.

On 20 June 2006, petitioner filed with the RTC a Motion for the Issuance of a Writ of

Execution of the RTC Order dated 15 May 2006. 20Respondents opposed the motion on the

ground that there was no stipulation in the Compromise Agreement to the effect that petitioner

is entitled to collect an amount equivalent to 15% of the monies due the non-EPIRA separated

members. Respondents contended that the amount of P119,196,000.00 due the non-EPIRA

separated members under the compromise agreement was a mere estimate and, as such, cannot

be validly used by petitioner as basis for his claim of 15% attorney's fees. 21 cIaHDA

The RTC issued an Order on 25 July 2006 granting petitioner's Motion 22 and, accordingly, a

Writ of Execution of the RTC Order dated 15 May 2006 was issued on 26 July 2006. Pursuant

to the said Writ of Execution, RTC Branch Sheriff Reynaldo B. Madoloria (Sheriff Madoloria)

issued a Notice of Garnishment to Ms. Aurora Arenas (Arenas), Assistant Vice-President and

Business Manager of the Philippine National Bank (PNB)-NAPOCOR Extension Office,

Diliman, Quezon City, and to Mr. Emmanuel C. Mendoza (Mendoza), Unit Head of the

Landbank of the Philippines-NAPOCOR Extension Office, Diliman, Quezon City. 23

Respondents filed a Motion for Reconsideration of the RTC Order dated 25 July 2006. 24

On 12 August 2006, Sheriff Madoloria served to Arenas an "Order for Delivery of

Money". 25 HDTSIE

Respondents Anguluan and Dy filed before the Court of Appeals on 22 August 2006 a Petition

for Certiorari under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 95786,

assailing the RTC Order dated 25 July 2006 and praying that a temporary restraining order

and/or a writ of preliminary injunction be issued enjoining the implementation of the said RTC

order. 26 Respondent NAPOCOR filed with the Court of Appeals on the same date another

Petition for Certiorari under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No.

95946, also challenging the RTC Order dated 25 July 2006 and praying that it be set aside and

a temporary restraining order and/or a writ of preliminary injunction be issued prohibiting the

RTC from enforcing the said order and the corresponding writ of execution and notice of

garnishment. 27 Subsequently, respondent NAPOCOR filed a Motion to Consolidate CA-G.R.

SP No. 95946 with CA-G.R. SP No. 95786 which was granted by the appellate court.28

On 31 October 2006, the Court of Appeals issued a Resolution granting respondents'

application for a TRO and writ of preliminary injunction. It enjoined the RTC from

implementing its Order dated 25 July 2006 and the corresponding writ of execution and notice

of garnishment during the pendency of CA-G.R. SP No. 95946 and No. 95786. Petitioner filed

a motion for reconsideration of the said resolution. 29

On 29 January 2007, the Court of Appeals promulgated its Decision annulling and setting

aside: (1) the RTC Order dated 25 July 2006; (2) the corresponding Writ of Execution dated 26

July 2006; (3) the Notice of Garnishment dated 28 July 2006; and (4) Order for Delivery of

Money dated 10 August 2006. It also held that petitioner was entitled only to an amount of

P1,000,000.00 as attorney's fees on the basis of quantum meruit.

The Court of Appeals held that the amount of P17,794,572.70 sought to be collected by

petitioner as attorney's fees, equivalent to 15% of the P119,196,000.00 estimated corrected

earnings differential for non-EPIRA separated members, was excessive based on the following

reasons:(1) the corrected earnings differential in the amount of P119,196,000.00 due the non-

EPIRA separated members was a mere estimate and was hypothetical. Thus, petitioner was

unjustified in using said amount as basis for his 15% attorney's fees; (2) there was hardly any

work by petitioner since (a) the compromise agreement was reached without trial or hearing on

the merits; (b) there was no issue regarding the release and distribution of the NAPOCOR

Welfare Fund to the non-EPIRA separated members as the enactment of EPIRA, not the efforts

of petitioner, made such distribution possible; (c) there was no issue on how much each non-

EPIRA separated members would receive because the amount of their respective contribution

was duly recorded by the respondents; (d) respondents have already distributed the corrected

earnings differential to some non-EPIRA separated members, and have given petitioner his

corresponding partial attorney's fees amounting to P3,512,007.32; (e) most of the non-EPIRA

separated members have not yet received their share under the compromise agreement but

petitioner, who was merely their agent, was already given partial payment as attorney's fees; (f)

the amount of P17,794,572.70 represents "only less than one fourth partial release of the

NAPOCOR Welfare Fund which means that the equivalent of three-fourths more would be

demanded [by petitioner] in the future"; and (3) the money claim of the non-EPIRA separated

members was settled through a compromise agreement and not won by petitioner in a trial on

the merits. cHITCS

The Court of Appeals determined that petitioner was entitled only to an amount of

P1,000,000.00 as attorney's fees on the basis of quantum meruit. However, since petitioner

already received P3,512,007.32 from respondents as partial payment of his supposed 15%

attorney's fees, it ruled that such amount was more than sufficient and petitioner was not

entitled to claim anymore the additional amount of P14,282,565.38. Thefallo of the Decision of

the Court of Appeals reads:

WHEREFORE, premises considered, the assailed July 25, 2006 Order, the

July 26, 2006 Writ of Execution, the July 28, 2006 Notice of Garnishment, and

the August 10, 2006 Order of Delivery of Money are

hereby ANNULLED and SET ASIDE, and a new one is ordered, CAPPING at

P3,512,007.32, the amount manifested to have already been received from the

welfare fund as attorneys fees, as the maximum amount that may be billed or

collected as attorneys fees from the whole welfare fund — which amount is

NOTED to have already exceeded what this court had fixed at P1,000,000.00

as the reasonable amount, on quantum meruit, that may be collected as

attorneys' fees, pursuant to the guidelines codified in Rule 20.01, Canon 20 of

the Code of Professional Responsibility. 30 CIHAED

Petitioner filed a motion for reconsideration of the aforementioned Decision but this was

denied by the Court of Appeals in its Resolution dated 27 September 2007. 31

Hence, petitioner brought the instant petition before us assigning the following errors:

I.

THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENTS

EDMUND P. ANGULUAN, LORNA T. DY AND NATIONAL POWER

CORPORATION (NPC) ARE ENTITLED TO [PRELIMINARY]

INJUNCTION AS THEY HAVE MATERIAL AND SUBSTANTIAL

RIGHTS, WHICH ARE CLEAR AND UNMISTAKABLE, i.e. RIGHTS OF

BEING CLIENTS TO QUESTION THE REASONABLENESS OF THE

ATTORNEY'S FEES OF A LAWYER. THIS ALLEGED RIGHT IS NON-

EXISTENT AND IN FACT FABRICATED CONSIDERING THAT THE

RESPONDENTS ARE NOT THE CLIENTS AT ALL OF PETITIONER,

ATTY. VICTORIANO V. OROCIO; DaCTcA

II.

THE COURT OF APPEALS ERRED IN RULING THAT THE FIFTEEN

PERCENT (15%) CONTINGENCY/SUCCESS FEE OF PETITIONER

VICTORIANO V. OROCIO IS UNCONSCIONABLE AND

UNREASONABLE DESPITE THE UNDISPUTED FACT THAT THE SAID

ATTORNEY'S FEES IS AMONG THE TERMS AND CONDITIONS OF A

JUDICIALLY APPROVED COMPROMISE AGREEMENT AND COURT

ORDER APPROVING HIS CHARGING LIEN, WHICH AGREEMENT

AND ORDER HAVE ALREADY BECOME FINAL AND

EXECUTORY. 32

In his first assigned error, petitioner assails the Resolution dated 31 October 2006 of the Court

of Appeals granting respondents' application for a writ of preliminary injunction. He claims that

the Court of Appeals issued a writ of preliminary injunction in favor of respondents because

petitioner allegedly violated respondents' material and substantial right as petitioner's clients to

pay only reasonable attorney's fees. Petitioner asserts that none of the respondents is his client

in the present case; that even respondents themselves have not alleged or claimed that they are

his clients; that the amount of attorney's fees he claimed was chargeable on a portion of the

NAPOCOR Welfare Fund due his clients, the non-EPIRA separated employees; that if anyone

would be injured by his claim of attorney's fees, it would be his clients, the non-EPIRA

separated employees, and not respondents; that none of his clients has questioned or

complained about the amount of attorney's fees he is claiming; that respondents are not the real

parties-in-interest and at most are merely nominal parties-in-interest; that as mere nominal

parties-in-interest, respondents are not entitled to a writ of preliminary injunction under the

Rules of Court; and that the requisites for the proper issuance of a writ of preliminary

injunction are lacking in the instant case. 33 HDTISa

In its Resolution dated 31 October 2006, the Court of Appeals granted respondents' application

for a writ of preliminary injunction based on the following reasons:

This Court finds that [herein respondents] have prima facie established [their]

compliance with strict requirements for issuance of a writ of preliminary

injunction in this case. Under the leading case of Valencia vs. Court of

Appeals, 352 SCRA 72 (2001), the requisites of preliminary injunction are as

follows: (a) the invasion of the right of [herein respondents] is material and

substantial; (b) the right of [herein respondents] is clear and unmistakable; and

(c) there is an urgent and paramount necessity for the writ to prevent serious

irreparable damage to [herein respondents].

The right of [herein respondents] alleged to have been invaded is that a client

has the right to pay only a reasonable amount of attorney's fees and only for

services actually rendered — which is clearly and unmistakably available to

all clients. What [herein respondents] are claiming is a material and substantial

right. This Court finds that [herein respondents] have prima facieestablished

an urgent and paramount necessity for the issuance of the writ of preliminary

injunction prayed for, to avoid irreparable injury to [herein respondents]. . . .

. DHcEAa

As can be gleaned from the foregoing, the basis of the Court of Appeals in granting the writ

was petitioner's alleged violation or invasion of respondents' right, as petitioner's clients, to pay

only a reasonable amount of attorney's fees to, and only for services actually rendered by,

petitioner.

The Court of Appeals is clearly mistaken.

It should be made clear that petitioner is the counsel for the non-EPIRA separated members in

the latter's quest to claim their shares in the NAPOCOR Welfare Fund. Petitioner was never

hired or employed by respondents as their counsel in the cases at bar. Respondents themselves

do not claim or allege that they are clients of petitioner. In fact, petitioner is representing the

non-EPIRA separated members, the opposing party to the respondents in the present cases.

Further, the amount of attorney's fees being claimed by petitioner is chargeable to the

P119,196,000.00 corrected earnings differential of his clients, the non-EPIRA separated

members. Respondents have actually partially distributed such amount to some non-EPIRA

separated members pursuant to the Compromise Agreement. In other words, the non-EPIRA

separated members are the lawful owners/beneficiaries of the amount from which petitioner's

attorney's fees had been and shall be taken.

Hence, if anyone would be injured by petitioner's claim for attorney's fees, it would be his

clients, the non-EPIRA separated members, and not respondents. It appears, however, that none

of the non-EPIRA separated members has questioned or complained about petitioner's claim for

attorney's fees.

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the

judgment or final order, requiring a party or a court, agency or a person to refrain from a

particular act or acts. 34 A writ of preliminary injunction is a provisional remedy, an adjunct to

a main suit, as well as a preservative remedy issued to preserve the status quo of the things

subject of the action or the relations between the parties during the pendency of the suit. 35 For

a writ of preliminary injunction to issue, the applicant is tasked to establish and convincingly

show the following: (1) a right in esse or a clear and unmistakable right to be protected; (2) a

violation of that right; and (3) there is an urgent and permanent act and urgent necessity for the

writ to prevent serious damage. 36 TSEcAD

A clear legal right means one clearly founded on or granted by law or is enforceable as a matter

of law. 37 The existence of a right violated is a prerequisite to the granting of a writ of

preliminary injunction. 38 A writ of preliminary injunction will not issue to protect a right not

in esse and which may never arise. 39 It may be issued only if the applicant has clearly shown

an actual existing right that should be protected during the pendency of the principal

action. 40 In the absence of a clear legal right, or when the applicant's right or title is doubtful

or disputed, preliminary injunction is not proper. 41

It is evident from the foregoing that respondents do not have a clear right or right in esse to pay

only a reasonable amount of attorney's fees to the petitioner because such right belongs solely

to petitioner's clients, the non-EPIRA separated members. There can be no violation of a right

which does not exist in the first place. Also, there was no necessity for the writ of preliminary

injunction since the non-EPIRA separated members do not claim any damage or injury caused

by the execution of the RTC Order dated 15 May 2006. Even assuming that respondents would

probably suffer damages as administrators or custodians of the NAPOCOR Welfare Fund if the

writ of preliminary injunction was not granted, our ruling would still be the same. We have

held that the possibility of irreparable damage without proof of an actual existing right is not a

ground for the issuance of a writ of preliminary injunction. 42 Given these considerations, we

hold that the issuance by the Court of Appeals of a writ of preliminary injunction in favor of

respondents in its Resolution, dated 31 October 2006, was improper.

With regard to his second assigned error, petitioner maintained that his claim for attorney's fees

equivalent to 15% of the P119,196,000.00 estimated corrected earnings differential due the

non-EPIRA separated members was not unreasonable or unconscionable because such amount

was expressly agreed upon in the Compromise Agreement between the non-EPIRA separated

members and respondents. The Compromise Agreement was submitted to the RTC for

approval through the joint motion of the non-EPIRA separated members and respondents, and

the RTC had rendered a final and executory decision approving the same. By virtue of res

judicata, the Court of Appeals cannot alter or change the terms of the Compromise Agreement

by prohibiting petitioner from collecting his stipulated amount of attorney's fees. 43

Petitioner also avers that the amount of P17,794,572.70, which is equivalent to 15% of the

P119,196,000.00 estimated corrected earnings differential due the non-EPIRA separated

members from the NAPOCOR Welfare Fund is already the total, not partial, amount he is

claiming as attorney's fees; that the P119,196,000.00 estimated corrected earnings differential

due the non-EPIRA separated members from the NAPOCOR Welfare Fund is not hypothetical,

such amount having been actually computed and fixed by respondents themselves without the

participation of petitioner and his clients, the non-EPIRA separated members; that he did a lot

of legal work and utilized his legal skills on discovery procedures to force respondents to enter

into the Compromise Agreement with the non-EPIRA separated members; that the passage of

EPIRA merely paved the way for the distribution of the remaining assets of the NAPOCOR

Welfare Fund; that if not for his legal work and skills, the non-EPIRA separated members

would not have received their lawful shares in the remaining assets of the NAPOCOR Welfare

Fund; and that his claim for 15% attorney's fees is supported by jurisprudence. 44

An attorney's fee, in its ordinary concept, refers to the reasonable compensation paid to a

lawyer for the legal services he has rendered to a client. 45 The client and his lawyer may enter

into a written contract whereby the latter would be paid attorney's fees only if the suit or

litigation ends favorably to the client. This is called a contingency fee contract. The amount of

attorney's fees in this contract may be on a percentage basis, and a much higher compensation

is allowed in consideration of the risk that the lawyer may get nothing if the suit fails. 46 In the

case at bar, the non-EPIRA separated members and petitioner voluntarily entered into a

contingency fee contract whereby petitioner did not receive any acceptance fee or

appearance/meeting fee. The non-EPIRA separated members expressly agreed to pay petitioner

"contingency or success fees of fifteen percent (15%) of whatever amount/value of assets

(liquid and/or non-liquid)" recovered; and authorized petitioner's law firm "to receive and/or

collect its contingency/success fee without further demand".

Contingent fee contracts are permitted in this jurisdiction because they redound to the benefit of

the poor client and the lawyer "especially in cases where the client has meritorious cause of

action, but no means with which to pay for legal services unless he can, with the sanction of

law, make a contract for a contingent fee to be paid out of the proceeds of litigation.

Oftentimes, the contingent fee arrangement is the only means by which the poor clients can

have their rights vindicated and upheld". Further, such contracts are sanctioned by Canon 13 of

the Canons of Professional Ethics. 47 SCaITA

However, in cases where contingent fees are sanctioned by law, the same should be reasonable

under all the circumstances of the case, and should always be subject to the supervision of a

court, as to its reasonableness, such that under Canon 20 of the Code of Professional

Responsibility, a lawyer is tasked to charge only fair and reasonable fees. 48

A stipulation on a lawyer's compensation in a written contract for professional services

ordinarily controls the amount of fees that the contracting lawyer may be allowed, unless the

court finds such stipulated amount to be unreasonable or unconscionable. If the stipulated

amount for attorney's fees is excessive, the contract may be disregarded even if the client

expressed their conformity thereto. 49 Attorney's fees are unconscionable if they affront one's

sense of justice, decency or reasonableness, or if they are so disproportionate to the value of the

services rendered. In such a case, courts are empowered to reduce the attorney's fee or fix a

reasonable amount thereof taking into consideration the surrounding circumstances and the

established parameters. 50

The principle of quantum meruit (as much as he deserves) may be a basis for determining the

reasonable amount of attorney's fees. Quantum meruit is a device to prevent undue enrichment

based on the equitable postulate that it is unjust for a person to retain benefit without paying for

it. It is applicable even if there was a formal written contract for attorney's fees as long as the

agreed fee was found by the court to be unconscionable. In fixing a reasonable compensation

for the services rendered by a lawyer on the basis of quantum meruit, factors such as the time

spent, and extent of services rendered; novelty and difficulty of the questions involved;

importance of the subject matter; skill demanded; probability of losing other employment as a

result of acceptance of the proffered case; customary charges for similar services; amount

involved in the controversy and the benefits resulting to the client; certainty of compensation;

character of employment; and professional standing of the lawyer, may be considered. 51

It appears that the non-EPIRA separated members chose petitioner as their counsel because the

latter, as former member of the NAPOCOR-WFBT for two terms or four years, is familiar and

knowledgeable on the operation of the NAPOCOR Welfare Fund. 52 Yet, according to the

contingency fee contract agreement between petitioner and the non-EPIRA separated members,

petitioner received no acceptance fee and appearance/meeting fee when he took on the non-

EPIRA separated members' case. Petitioner's attorney's fees were absolutely dependent on the

success of non-EPIRA separated members' claim on the NAPOCOR Welfare Fund. Despite

these circumstances, petitioner worked diligently in advocating the claims of the non-EPIRA

separated members against respondents as shown by the following: (1) petitioner took pains in

verifying the identity and claim of each of the 559 non-EPIRA separated members on the

NAPOCOR Welfare Fund; (2) petitioner prepared and filed a well-researched and well-argued

petition with the RTC for the claims of the non-EPIRA separated members; 53 (3) he prepared

and presented several witnesses and numerous pertinent documents before the RTC in support

of their application for the issuance of a temporary restraining order and/or writ of preliminary

injunction against respondents' plan to exclude the non-EPIRA separated members from

receiving their shares in the NAPOCOR Welfare Fund; (4) he participated, as non-EPIRA

separated members' counsel, in the conduct of several hearings regarding the said application

for the issuance of temporary restraining order and/or writ of preliminary injunction; 54 (5) he

obtained a temporary restraining order and a writ of preliminary injunction from the RTC

which enjoined/prohibited respondents from excluding the non-EPIRA separated members

from their shares in the NAPOCOR Welfare Fund; 55 (6) he held numerous conferences with

the non-EPIRA separated members wherein he apprised the latter of the status of their claims

and his legal strategies pertinent thereto; 56 and (7) he exerted utmost efforts which eventually

led to the execution of the Compromise Agreement between the non-EPIRA separated

members and respondents. IaESCH

By reason of petitioner's dedication and persistence as can be gleaned above, respondents

finally agreed to settle amicably with the non-EPIRA separated members as regards the latter's

claim for shares in the NAPOCOR Welfare Fund by virtue of the Compromise Agreement.

Undoubtedly, were it not for petitioner's vigilance and zeal, respondents would not have

executed the Compromise Agreement with the non-EPIRA separated members. Hence, it is fair

to conclude that petitioner was entitled to a reasonably high compensation.

However, petitioner's attorney's fees in the amount of P17,794,572.70 or equivalent to 15% of

the P119,196,000.00 corrected earnings differential of the non-EPIRA separated members

should be equitably reduced. EcIDaA

In NPC Drivers and Mechanics Association (NPC DAMA) v. The National Power Corporation

(NPC), 57 we awarded separation pay in lieu of reinstatement plus backwages to several NPC

employees because they were illegally dismissed by the NPC. The NPC employees were

represented by a certain Atty. Cornelio P. Aldon (Atty. Aldon) and Atty. Victoriano V. Orocio,

(the petitioner in the instant cases) under a legal retainer agreement which provides: (1) no

acceptance fee; (2) miscellaneous/out of pocket expenses in the amount of P25,000.00; and (3)

twenty-five percent (25%) of whatever amounts/monies are recovered in favor of said NPC

personnel contingent on the success of the case. Atty. Aldon and Atty. Orocio filed a Motion

for Approval of Charging (Attorney's) Lien pursuant to the legal retainer agreement. Although

we granted the said motion, we reduced the amount of attorney's fees which was chargeable on

the monies recoverable by the NPC employees from 25% to 10% because:

While we duly recognize the right of Atty. Aldon and Atty. Orocio to a

charging lien on the amounts recoverable by petitioners pursuant to our 26

September 2006 Decision, nevertheless, we deem it proper to reduce the same.

Under Section 24, Rule 138 of the Rules of Court, a written contract for

services shall control the amount to be paid therefor unless found by the court

to be unconscionable or unreasonable. The amounts which petitioners may

recover as the logical and necessary consequence of our Decision of 26

September 2006, i.e., backwages and separation pay (in lieu of reinstatement),

are essentially the same awards which we grant to illegally dismissed

employees in the private sector. In such cases, our Labor Code explicitly limits

attorney's fees to a maximum of 10% of the recovered amount. Considering by

analogy the said limit on attorney's fees in this case of illegal dismissal of

petitioners by respondent NPC, a government-owned and controlled

corporation; plus the facts that petitioners have suffered deprivation of their

means of livelihood for the last five years; and the fact that this case was

originally filed before us, without any judicial or administrative proceedings

below; as well as the fundamental ethical principle that the practice of law is a

profession and not a commercial enterprise, we approve in favor of Atty.

Aldon and Atty. Orocio a charging lien of 10% (instead of 25%) on the

amounts recoverable by petitioners from NPC pursuant to our Decision dated

26 September 2006.

The abovementioned case may be reasonably applied by analogy in the instant case since they

have substantially similar circumstances. In the case before us, although the non-EPIRA

separated members were not illegally dismissed, they were, nevertheless, separated from work

by reason of EPIRA. In addition, the non-EPIRA separated members had a legal retainer

agreement/contingency fee contract with petitioner as their counsel.

It should also be emphasized that the practice of law is a profession not a moneymaking

venture. A lawyer is not merely the defender of his client's cause and a trustee of his client's

cause of action and assets; he is also, and first and foremost, an officer of the court and

participates in the fundamental function of administering justice in society. It follows that a

lawyer's compensation for professional services rendered is subject to the supervision of the

court, not just to guarantee that the fees he charges and receives remain reasonable and

commensurate with the services rendered, but also to maintain the dignity and integrity of the

legal profession to which he belongs. Upon taking his attorney's oath as an officer of the court,

a lawyer submits himself to the authority of the courts to regulate his right to charge

professional fees. Thus, taking into account the foregoing circumstances and recognized

principles, the 15% attorney's fees of petitioner should be reduced to10%. As such, petitioner is

entitled to collect only, as attorney's fees, an amount equivalent to 10% of

the P119,196,000.00 orP11,919,600.00.

We note, however, that the compromise agreement was partially implemented in the first week

of April 2006 with the payment of P23,416,000.00 to some non-EPIRA separated

members. 59 Petitioner admitted having already received an amount of P3,512,007.32 as his

attorney's fees on the said partial payment of P23,416,000.00. 60 Accordingly, the amount of

P3,512,007.32 received by petitioner as attorney's fees should be deducted from the fixed 10%

attorney's fees or the amount of P11,919,600.00. Per computation, petitioner is entitled to

recover the amount of P8,407,592.68 as attorney's fees.

WHEREFORE, premises considered, the Resolution of the Court of Appeals dated 31 October

2006 in CA-G.R. SP Nos. 95786 and 95946 granting the issuance of a writ of preliminary

injunction is hereby ANNULLED and SET ASIDE. The Decision and Resolution, dated 29

January 2007 and 27 September 2007, respectively, of the Court of Appeals in CA-G.R. SP

Nos. 95786 and 95946 are hereby AFFIRMED with the MODIFICATION that petitioner is

entitled to recover attorney's fees in the amount of P8,407,592.68 on the corrected earnings

differential of the non-EPIRA separated members. No costs.

SO ORDERED.

HEIRS OF SPOUSES JOSE and CONCEPCION OLORGA, represented by ILDA OLORGA-

CAÑAL, complainants, vs. Judge ROLINDO D. BELDIA, JR., and Branch Clerk of Court

MARY EMILIE T. VILLANUEVA, Regional Trial Court, San Carlos City, Negros Occidental,

Branch 57, respondents.

D E C I S I O N

CORONA, J p:

In a verified complaint dated April 5, 2006, complainant Ilda Olorga-Cañal, by herself and as

representative of the other heirs of spouses Jose and Concepcion Olorga, charged respondents

Judge Rolindo D. Beldia, Jr. and Atty. Mary Emilie T. Villanueva, former presiding judge and

branch clerk of court, respectively, of the Regional Trial Court (RTC), San Carlos City, Negros

Occidental, Branch 57, with infidelity in the custody of records in connection with Civil Case

No. X-82 entitled "Concepcion Olorga, et al. v. Cesar Lopez" for specific performance and

damages. DSATCI

The complainants made the following allegations:

(1)The records of Civil Case No. X-82, which was filed way back in 1982 by

their mother, Concepcion Olorga, were lost while in the custody of

respondents and could not be found. They found out that the only entry

was the name of [Atty. Rudy B. Cañal] 1 who filed the case, the date of

the filing, the title of the complaint and nothing else, up to the present

year 2006 or precisely a span of 24 years.

(2)As a result of said complete loss of the records, they found it extremely

difficult, if not impossible, to prove that the property or lot, subject

matter of the civil case, had been fully and completely paid for by the

spouses. All the documentary evidence had already been submitted to

the RTC, Branch 57 in 1993 as supported by the xerox copy of the

order of respondent judge. Unfortunately, complainants could not

secure a certified true copy of this order but would be able to present

the original carbon copy duly signed by the Clerk of Court at that

time. 2

(3)Their late father, notwithstanding the distance of their home from the court,

the two-hour bus ride and the long hours of waiting in the court,

followed up the case after the death of their mother, for almost 10

years, i.e. from 1982 to 1991. On April 19, 1993, they had already

rested their case and the lawyer for the defendant had manifested in

open court that if the last defense witness could not be presented on the

next scheduled hearing, he, too, would be resting his case. Despite this,

respondent judge failed to resolve the case within the mandated time of

90 days, from 1994 to 2006. 3

(4)Respondents were trying to cover-up their negligence by blaming the

termites for the loss of the records. Complainants had in their

possession copies of the orders issued by respondent judge himself

indicating that the same had long been submitted for decision. 4

Respondent judge denied the charges against him. He offered these defenses: AEHCDa

(1)He was appointed as judge of RTC, San Carlos City, Negros Occidental,

Branch 57 only on March 19, 1992 and assumed office in May 1992.

Thereafter, he was designated as the acting presiding judge of the RTC,

Bacolod City, Branch 45 on June 30, 1993. 5He went back to Branch

57 only in April 2002. 6 During the interim period or before his return

to Branch 57, he was designated as the acting presiding judge in RTC,

Bacolod City, Branch 41, Mambusao, Capiz and Marikina. 7

(2)Upon inquiry from the court personnel who had been and still assigned in

Branch 57, the records of Civil Case No. X-82 could not be traced or

located and that the entry in the docket book did not indicate the status

of the case and was haphazardly done. If it would still be possible,

reconstruction of the records of the case was the only and best way by

which complainants could be apprised of the actual status of the case.

The Branch 57 personnel under his watch had nothing to do with the

loss of the records of Civil Case No. X-82.

(3)The case records of Civil Case No. X-82 remained with Branch 57 when he

was transferred to RTC, Bacolod City, Branch 45 since the records of

the cases assigned to him in Branch 57 did not follow him wherever he

was assigned. Furthermore, these records could and should not be

brought outside of the court's premises without any court order.

(4)The audit team sent by the Supreme Court on March 21, 2000 found that

Civil Case No. X-82 was not among the civil cases that remained not

acted upon for a long time. 8 When another audit team came on June

16, 2005, the case was never brought up. This team perused the docket

books and found everything in order.

(5)When he was ordered to return to Branch 57 in 2002, Civil Case No. X-82

was not among the cases in the inventory he signed when he resumed

his post. 9

On the other hand, respondent Atty. Mary Emilie T. Villanueva averred that: DAEaTS

(1)She assumed as branch clerk of court of Branch 57, on January 10, 2000.

When she assumed her position, there was no existing list of cases

submitted for decision and she had to conduct and prepare a physical

and actual inventory of all the pending cases assigned to Branch 57.

Civil Case No. X-82 was not included in the inventory she prepared

and signed by former presiding judge Roberto S.A. Javellana. Also, it

was not among those civil cases found by the audit team sent by the

Supreme Court on March 21, 2000 as not having been resolved within

the required period. 10

(2)When she assumed office, she realized that the former clerks of court and

officers-in-charge of Branch 57 did not keep a proper

recording/docketing of the cases assigned to and decided by the said

court. So she instructed the clerks-in-charge to properly fill in the

docket books the dispositive portions of the court's decisions or final

orders before endorsing the records of these cases to the office of the

clerk of court.

(3)Sometime in March 2006, the complainants (spouses Cañal) went to her

office to follow-up the status of Civil Case No. X-82 after inquiring by

phone. She informed them she had the records of the case searched

prior to their arrival but they were not found. In the course of her

investigation, she came to know that the records of the case were lost

long ago. Even the former clerk of court, Atty. Riah Debulgado, tried

to look for them during the latter months of 1995 and early months of

1996 but failed to find them. She showed them the page in the docket

book showing the entry relevant to the case. She assured complainants

that their office will help them with the reconstruction of the records.

Her averments found support in the affidavits of the court's

stenographer, sheriff IV, and clerk III (in-charge of the records of all

the civil cases). 11

In a resolution dated February 12, 2007, upon the recommendation of the Office of the Court

Administrator (OCA), we referred the administrative case to the Court of Appeals, Cebu City,

for investigation, report and recommendation. 12 It was assigned to Justice Francisco P. Acosta

who conducted a hearing on the matter.

From the testimonies and documentary evidence, Justice Acosta ferreted out the following

sequence of events:

(1)Civil Case No. X-82 was filed in 1982 in RTC, San Carlos City, Negros

Occidental, Branch 57, then presided by Judge Macandog, by Atty.

Cañal against Cesar Lopez.

(2)There were photocopies of the orders issued by then Judge Cesar D.

Estampador in Civil Case No. X-82, where one Order stated —

As agreed by counsel for both parties, let the continuance of the

hearing of this case be set on October 29, 1987, at 8:30 in the

morning, for counsel for the plaintiff to cross-examine witness

Cesar Lopez. CDaSAE

SO ORDERED.

(3)The other orders issued by Judge Estampador were all

postponements/resetting of hearing dates.

(4)In a Motion dated May 21, 1084, Atty. Cañal withdrew as counsel.

(5)Atty. Raymundo Ponteras took over the case from Atty. Cañal, and

thereafter, Atty. Vic Agravante took over from Atty. Ponteras;

(6)Respondent judge was appointed as the presiding judge of Branch 57

on March 19, 1992 and assumed office in May 1992.

(7)Respondent judge was designated as acting presiding judge of Branch RTC,

Bacolod City, Branch 45, pursuant to Administrative Order No. 104-93

dated June 30, 1993, in lieu of Judge Medina who retired, but at the

same time he continued to hear cases in Branch 57 since Judge Roberto

S.A. Javellana fully assumed the position of presiding judge of Branch

57 only in January of 1995.

(8)The last order issued by the respondent judge in Civil Case No. X-82 was

dated November 16, 1994, which read as follows:

All exhibits marked, Exhibit "I" with its sub-markings; Exhibit "5"

sub-markings; Exhibits "6", "7", "8", and "8-A"; Exhibit "9"

and "10" are all admitted as part of the testimony of the

witnesses for the defendants, for whatever worth it may be and

thereafter submitted for DECISION.

SO ORDERED.

(9)Respondent judge was designated as the presiding judge of RTC, Bacolod

City, Branch 41 on December 21, 1994, by virtue of Administrative

Order No. 225-93, but assumed office only in January of

1995. CIDaTc

(10)Based on their joint-affidavit dated June 2, 2006, spouses Juanito and

Leticia de Guzman 13 averred that sometime in 1994, they went to

Branch 57 to follow-up on the case. They were shown the records

thereof and someone from the office asked them for P300 as traveling

expenses of the court's messenger who would deliver the case records

to respondent judge in Bacolod City since the latter was the one to

decide the said case.

(11)Based on the affidavit of Rudy L. Olorga, he delivered the amount of P300

to the court messenger at his residence and could even recall where the

latter lives.

(12)The complainants, however, did not present the court messenger or any

person who could corroborate the foregoing allegations.

(13)Branch 57 clerk-in-charge of civil cases Lilibeth Libutan assumed her

duty as such in July 1996. Per her sworn statement, she had no

knowledge of Civil Case No. X-82, until she heard the former clerk of

court, the late Atty. Riah Debulgado say that she (Atty. Debulgado)

had been looking for the said records but could not locate them.

(14)Respondent clerk of court assumed office only on January 10, 2000. There

was no formal turn-over of all the court's case records since at that

time, only the judges were required to make and submit a bi-annual

docket inventories and to conduct an inventory upon their assumption

of office.

(15)On March 21, 2000, the Supreme Court sent an audit team to Branch 57

and found out that there were several cases not acted upon for a long

period of time but Civil Case No. X-82 was not one of them as

revealed in the resolution of the First Division of the Supreme Court

dated August 28, 2000.

(16)Per the docket Inventory dated July 11, 2000, for the period January to

June 2000, submitted by Judge Javellana, Civil Case No. X-82 was not

included in said inventory.

(17)Respondent judge returned to Branch 57 in 2002, pursuant to

Administrative Order No. 18-2002 dated February 7, 2002.

(18)The Supreme Court sent another audit team on June 16, 2005 and found

that no active records had been lost and after going over the court's

docket books, said team found everything to be in order. ASaTHc

(19)Sometime in March of 2006, someone inquired about the status of the

case, and thereafter, the respondent clerk of court instructed the clerk

in charge to look for the records of Civil Case No. X-82 in all possible

places where it may be found, including in the disposed and archived

cases section, but the search yielded nothing.

(20)In the last week of March 2006, complainant Ilda Olorga-Cañal, together

with Atty. Rudy Cañal and some other companions, went to Branch 57

and asked for the records of Civil Case No. X-82. They were shown

the docket book and were informed that neither the respondent clerk of

court nor the clerk in charge had seen said records.

(21)The Supreme Court directed respondent judge to conduct an

investigation/inquiry regarding Civil Case No. X-82.

(22)The last entry in the docket book pertaining to Civil Case No. X-82 is the

order dated March 5, 1982, terminating the pre-trial. From then on,

nothing was entered therein. 14

Based on these findings, Justice Acosta recommended that the complaint for infidelity in the

custody of records be dismissed against both respondents because these records were not in

their custody when they were lost. However, he recommended that respondent judge be held

liable for his negligence in maintaining his court's docket book and fined P5,000. 15

ON THE LIABILITY OF RESPONDENT JUDGE

Civil Case No. X-82 was submitted for decision in an order issued by respondent judge on

November 16, 1994. Judges of lower courts have 90 days from the time a case is submitted for

decision to decide the same. 16 Respondent judge was designated as presiding judge of RTC,

Bacolod City, Branch 41 on December 21, 1994 but assumed office in January 1995. The time

for rendering a decision had not lapsed at the time of his transfer and he did not render one

before he was transferred and replaced by Judge Javellana.

The question now is: who had custody of the records of Civil Case No. X-82 when they were

lost? EHTIDA

According to affiants Juanito and Leticia de Guzman, the records were still with Branch 57

when they followed up on the case sometime in 1994 after the same was submitted for

decision. They were told that they had to give P300 to the court's messenger for the latter to

bring the records to Bacolod City so that the respondent judge could decide the case. From this

statement, it is safe to assume that when the respondent judge left Branch 57, the records were

still there. 17

However, from the sworn affidavit of Lilibeth L. Libutan, clerk in charge of civil cases of

Branch 57, the records of Civil Case No. X-82 could not be found when she assumed office in

July 1996. She stated that Atty. Riah Debulgado, former branch clerk of court, also looked for

the missing records during the latter months of 1995 and early months of 1996 but failed to

locate them. 18

In Re: Cases Left Undecided by Judge Sergio D. Mabunay, RTC, Branch 24, Manila, 19 we

held that cases which are raffled to a branch belong to that branch unless re-raffled or otherwise

transferred to another branch in accordance with established procedure. Judges who are

transferred do not take with them cases substantially heard by them and submitted to them for

decision unless they are requested to do so by any of the parties and such request is endorsed by

the incumbent presiding judge through the OCA:

Basically, a case once raffled to a branch belongs to that branch unless

reraffled or otherwise transferred to another branch in accordance with

established procedure. When the Presiding Judge of that branch to which a

case has been raffled or assigned is transferred to another station, he leaves

behind all the cases he tried with the branch to which they belong. He does not

take these cases with him even if he tried them and the same were submitted to

him for decision. The judge who takes over this branch inherits all these cases

and assumes full responsibility for them. He may decide them as they are his

cases, unless any of the parties moves that his case be decided by the judge

who substantially heard the evidence and before whom the case was submitted

for decision. If a party therefore so desires, he may simply address his request

or motion to the incumbent Presiding Judge who shall then endorse the request

to the [OCA] so that the latter may in turn endorse the matter to the judge who

substantially heard the evidence and before whom the case was submitted for

decision. This will avoid the "renvoir" of records and the possibility of an

irritant between the judges concerned, as one may question the authority of the

other to transfer the case to the former. If coursed through the [OCA], the

judge who is asked to decide the case is not expected to complain, otherwise,

he may be liable for insubordination and his judicial profile may be adversely

affected. Upon direction of the Court Administrator, or any of his Deputy

Court Administrators acting in his behalf, the judge before whom a particular

case was earlier submitted for decision may be compelled to decide the case

accordingly. IcADSE

We take this opportunity to remind trial judges that once they act as presiding

judges or otherwise designated as acting/assisting judges in branches other

than their own, cases substantially heard by them and submitted to them for

decision, unless they are promoted to higher positions in the judicial ladder,

may be decided by them wherever they may be if so requested by any of the

parties and endorsed by the incumbent Presiding Judges through the [OCA].

The following procedure may be followed: First, the Judge who takes over the

branch must immediately make an inventory of the cases submitted for

decision left behind by the previous judge (unless the latter has in the

meantime been promoted to a higher court). Second, the succeeding judge

must then inform the parties that the previous judge who heard the case, at

least substantially, and before whom it was submitted for decision, may be

required to decide the case. In this event, and upon request of any of the

parties, the succeeding judge may request the Court Administrator to formally

endorse the case for decision to the judge before whom it was previously

submitted for decision. Third, after the judge who previously heard the case is

through with his decision, he should send back the records together with his

decision to the branch to which the case properly belongs, by registered mail

or by personal delivery, whichever is more feasible, for recording and

promulgation, with notice of such fact to the Court Administrator.

Since the primary responsibility over a case belongs to the presiding judge of

the branch to which it has been raffled or assigned, he may also decide the

case to the exclusion of any other judge provided that all the parties agree in

writing that the incumbent presiding judge should decide the same, or unless

the judge who substantially heard the case and before whom it was submitted

for decision has in the meantime died, retired or for any reason has left the

service, or has become disabled, disqualified, or otherwise incapacitated to

decide the case.

The Presiding Judge who has been transferred to another station cannot, on his

own, take with him to his new station any case submitted for decision without

first securing formal authority from the Court Administrator. This is to

minimize, if not totally avoid, a situation of "case-grabbing". In the same vein,

when the Presiding Judge before whom a case was submitted for decision has

already retired from the service, the judge assigned to the branch to take over

the case submitted for decision must automatically assume the responsibility

of deciding the case. 20

There is no showing that respondent judge was ever ordered by this Court, through the OCA, to

decide Civil Case No. X-82. Although there was an allegation that the records of the case were

delivered to respondent judge in Bacolod City, there was no proof whatsoever that he indeed

instructed someone from Branch 57 to bring the records to him. Much less was there proof that

the records were in fact brought to the respondent judge in Bacolod City so that he could decide

the case. DEAaIS

Thus, we agree with Justice Acosta that respondent judge could be held liable for infidelity in

the custody of public documents since there was no evidence that the records were lost while

they were in his possession, that he took them with him to Bacolod City or that he destroyed or

concealed them. There was only the self-serving affidavit of Juanito and Leticia de Guzman

offered by complainants which was not corroborated by independent or more reliable evidence.

This did not constitute substantial evidence that a reasonable mind would accept as adequate to

support the conclusion 21 that respondent judge was responsible for the loss of the case

records. In administrative proceedings, the complainant bears the onus of establishing, by

substantial evidence, the averments of his or her complaint. 22 Furthermore,

[any] administrative complaint leveled against a judge must always be

examined with a discriminating eye, for its consequential effects are by their

nature highly penal, such that the respondent judge stands to face the sanction

of dismissal or disbarment. Mere imputation of judicial misconduct in the

absence of sufficient proof to sustain the same will never be countenanced. If a

judge should be disciplined for misconduct, the evidence against him should

be competent. 23

Be that as it may, while respondent judge should not be held liable for the loss of the records of

Civil Case No. X-82, we agree with Justice Acosta that the former failed to demonstrate the

requisite care and diligence necessary in the performance of his duty as presiding judge,

specifically in ensuring that the entries in the court's docket book were updated. Respondent

judge himself admitted that the docket book was filled up "haphazardly". 24

Indeed, while it is not the presiding judge who makes the entries in the docket book, still

. . . the trial judge is expected to adopt a system of record management and

organize his docket in order to bolster the prompt and effective dispatch of

business. Proper and efficient court management is the responsibility of the

judge. It is incumbent upon judges to devise an efficient recording and filing

system in their courts so that no disorderliness can affect the flow of cases and

their speedy disposition. AECacS

xxx xxx xxx

Further evidence of Judge Legaspi's inability to implement an efficient

recording and filing system is her failure to maintain her court's civil and

criminal docket books since 1983. While it may be so that her predecessors

had similarly failed to maintain these books, Judge Legaspi has presided over

her sala since 1991. Yet, the entries of her docket book are complete only

"from 2000 up". In her defense, it appears that her clerks-in-charge have

"confessed to the impossibility of completing the docket book and attending to

their current work at the same time". Still, it is incumbent on all trial court

judges to duly apprise this Court or the OCA of problems they encounter in

the day-to-day administration of their court dockets and records, so they may

receive appropriate guidance and assistance. After all, the responsibility for an

efficient administration of justice lies not only with the trial court judges, but

with the judicial system as a whole. 25 (Emphasis supplied)

Respondent judge assumed office as the presiding judge of Branch 57 in May 1992. He issued

orders in Civil Case No. X-82, the last being the order dated November 16, 1994, declaring the

case submitted for decision. However, the last entry in the docket book pertaining to the case

was dated March 5, 1982. From then on, several orders were issued by the respondent judge but

these were never recorded in the docket book as they should have been.

Respondent judge was therefore negligent in the discharge of his duties. He failed to observe

that degree of care, precaution and vigilance required of his position. Considering his

administrative authority over the court's personnel, he should have directed them to be diligent

in the performance of their functions. He neglected to properly supervise them, particularly

those in charge of the docket books, resulting in incomplete entries therein. These violated

Rules 3.08 and 3.09 of the Code of Judicial Conduct:

Rule 3.08. — A judge should diligently discharge his administrative

responsibilities, maintain professional competence in court management, and

facilitate the performance of the administrative functions of other judges and

court personnel.

Rule 3.09. — A judge should organize and supervise the court personnel to

ensure the prompt and efficient dispatch of business, and require at all times

the observance of high standards of public service and fidelity.

This constituted simple misconduct, 26 defined as a transgression of some established rule of

action, an unlawful behavior or negligence committed by a public officer. 27 It is a less serious

offense 28 punishable by suspension from office without salary and other benefits for not less

than one month nor more than three months or a fine of more than P10,000 but not exceeding

P20,000. 29 cTECIA

Consequently, we fine respondent judge in the amount of P15,000 which is a stiffer penalty

than the P5,000 fine recommended by Justice Acosta. We find this amount reasonable,

considering that respondent judge had already been administratively sanctioned twice

before. 30

Respondent judge's compulsory retirement on October 31, 2006 31 did not render the present

administrative case moot and academic. It did not free him from liability. Complainant filed

this case on April 5, 2006, before respondent judge retired from office. As such, the Court

retained the authority to resolve the administrative complaint against him. Cessation from

office because of retirement does not per se justify the dismissal of an administrative complaint

against a judge while still in the service. 32 The P15,000 fine can and shall be deducted from

his retirement benefits.

Pursuant to A.M. No. 02-9-02-SC, 33 this administrative case against respondent as a judge,

based on grounds which are also grounds for the disciplinary action against members of the

Bar, shall be considered as disciplinary proceedings against such judge as a member of the

Bar. 34

Violation of the fundamental tenets of judicial conduct embodied in the Code of Judicial

Conduct constitutes a breach of Canons 1 and 11 of the Code of Professional Responsibility

(CPR):

Canon 1 — A lawyer shall uphold the constitution, obey the laws of the land

and promote respect for law and for legal processes.

Canon 11 — A lawyer shall observe and maintain the respect due to the courts

and to judicial officers and should insist on similar conduct by others.

Certainly, a judge who falls short of the ethics of the judicial office tends to diminish the

people's respect for the law and legal processes. He also fails to observe and maintain the

esteem due to the courts and to judicial officers. 35 Respondent judge's negligence also ran

counter to Canon 12 of the CPR which provides:

Canon 12 — A lawyer shall exert every effort and consider it his duty to assist

in the speedy and efficient administration of justice. ESCTIA

For such violation of Canons 1, 11 and 12 of the CPR, he is severely reprimanded.

ON THE LIABILITY OF RESPONDENT CLERK OF COURT

Justice Acosta recommended that respondent clerk of court be absolved of the charge filed

against her. We agree.

Section 7, Rule 136 of the Rules of Court specifically mandates the clerk of court to "safely

keep all records, papers, files, exhibits and public property committed to his [or her] charge."

Considering that the records of Civil Case No. X-82 could no longer be located in Branch 57

since 1995 and respondent clerk of court assumed her post only on January 10, 2000, these

records were obviously never committed to her charge.

In addition, in the docket inventory of cases dated July 11, 2000 prepared and submitted by

Judge Javellana, Civil Case No. X-82 was not included. Likewise, in our resolution dated

August 28, 2000, Civil Case No. X-82 was not in the list of cases still left undecided beyond

the mandated period.

For the same reason, respondent clerk of court cannot be held accountable for the incomplete

entries in the docket book with respect to Civil Case No. X-82.

Moreover, when complainants followed up the case with respondent clerk of court, the latter

conducted an investigation. When the records could not be found, she informed the

complainants and assured them that the court could assist them in reconstituting such records.

Under the circumstances, she did all that she could. It was not shown that she was remiss in her

duties. 36

To conclude, while we sympathize with the plight of complainants for the inconvenience

caused by the loss of the records of Civil Case No. X-82, we cannot pin the blame on

respondents who did not have custody of such records when they were lost. ScEaAD

WHEREFORE, retired Judge Rolindo D. Beldia, Jr. of the Regional Trial Court, San Carlos

City, Negros Occidental, Branch 57, is hereby found GUILTY of simple misconduct. He is

ordered to pay a FINE in the amount of Fifteen Thousand Pesos (P15,000), to be deducted from

his retirement benefits.

Respondent judge is further hereby SEVERELY REPRIMANDED for his violation of Canons

1, 11 and 12 of the Code of Professional Responsibility.

The complaint against Atty. Mary Emilie T. Villanueva, clerk of court of the Regional Trial

Court, San Carlos City, Negros Occidental, Branch 57, is DISMISSED.

SO ORDERED.

ERWIN H. REYES, petitioner, vs. NATIONAL LABOR RELATIONS

COMMISSION, COCA-COLA BOTTLERS PHILS. and/or ROTAIDA

TAGUIBAO, respondents.

D E C I S I O N

CHICO-NAZARIO, J p:

Before this Court is a Special Civil Action for Certiorari under Rule 65 of the Revised Rules of

Court filed by petitioner Erwin H. Reyes, seeking to reverse and set aside the Resolutions dated

10 November 2006 1 and 9 November 2007 2 of the Court of Appeals in CA-G.R. SP No.

96343. In its assailed Resolutions, the appellate court dismissed petitioner's Petition

for Certiorari therein for failure to give an explanation why copy of the said Petition was not

personally served upon the counsel of the respondents.

The present Petition arose from a Complaint for illegal dismissal with claims for moral and

exemplary damages and attorney's fees filed by petitioner against respondents Coca Cola

Bottlers Philippines (CCBP) and Rotaida Taguibao (Taguibao) before the Labor Arbiter on 14

June 2004.

Respondent CCBP is a corporation engaged in the business of production and distribution of

carbonated drinks, and Taguibao is its Human Resource Manager. CEaDAc

In his Complaint, petitioner alleged that he was first employed by respondent CCBP, through

Interserve Manpower Agency (Interserve), as a Leadman in February 1988. Petitioner was

initially assigned to the Mendiola Sales Office of respondent CCBP. Petitioner's employment

contract was renewed every five months and he was assigned a different task every time. Such

an arrangement continued until petitioner was directly hired by respondent CCBP as a Route

Salesman on 15 September 2000. Exactly one year from the time of petitioner's employment as

a Route Salesman, respondent CCBP, thru Taguibao, terminated his services on 15 September

2001. Since he already acquired the status of a regular employee, petitioner asserted that his

dismissal from employment without the benefit of due process was unlawful.

In opposing the Complaint, respondent CCBP refuted petitioner's allegation that he was a

regular employee. Petitioner's employment was for a fixed period of three months, which was

subsequently extended 3 with petitioner's consent. Petitioner was employed pursuant to the

mini-bodega project of respondent CCBP wherein respondent CCBP sought to extend its

market to areas that cannot be serviced by its regular salesmen. After the viability of this

marketing scheme was found to be unsuccessful, respondent CCBP was constrained to

discontinue petitioner's fixed-term employment. In addition, respondent Taguibao had no

liability for terminating petitioner's employment when it was not effected in bad faith. DEcSaI

On 30 April 2005, the Labor Arbiter promulgated his Decision, 4 favoring petitioner, since

there was insufficient evidence to sustain the averment of respondents CCBP and Taguibao that

petitioner's employment was for a fixed period. The Labor Arbiter noted that respondents

CCBP and Taguibao failed to present a copy of petitioner's purported Contract of Employment.

The only evidence adduced by respondents CCBP and Taguibao to buttress their contention of

petitioner's fixed-period employment was the Affidavit of respondent Taguibao herself, which

could not be afforded any evidentiary weight in the absence of independent corroborating

evidence. The Labor Arbiter thus decreed:

WHEREFORE, all the foregoing premises being considered, judgment is

hereby rendered ordering [herein respondents CCBP and Taguibao] as

follows:

(1)To reinstate [herein petitioner] to his former position as route salesman, or

to any substantially equivalent position with all the rights, privileges, and

benefits appertaining thereto including seniority rights;

(2)To pay [petitioner] his full backwages which as of August 30, 2005 already

amount to P565,500.00 subject to re-computation to include salary increases

granted during the intervening period and during the pendency of the instant

case, as well as benefits and privileges due a regular employee; and acEHSI

(3)To pay [petitioner] the award of attorney's fees equivalent to 10% of the

total judgment sum.

In compliance with the directive of the Labor Arbiter, respondents CCBP and Taguibao

immediately reinstated petitioner to his former position as Route Salesman on 1 March

2006. 5 However, respondents CCBP and Taguibao, by filing a Memorandum of Appeal before

the National Labor Relations Commission (NLRC) and posting the corresponding Supersedeas

Bond, sought the stay of the execution of the monetary awards made by the Labor Arbiter in his

Decision. Respondents CCBP and Taguibao asserted in their appeal that petitioner was merely

employed for a particular project which turned out to be not viable. Petitioner was subsequently

terminated from work on account of the expiration of his employment contract. Petitioner's

claim of illegal dismissal was, therefore, tenuous.

On 31 May 2006, the NLRC promulgated its Decision 6 dismissing the appeal of respondents

CCBP and Taguibao and affirming with modification the 30 April 2005 Decision of the Labor

Arbiter. The NLRC reduced the amount of backwages awarded to petitioner underscoring the

latter's unexplained delay (more than three years) in filing his Complaint for illegal dismissal.

Instead, the NLRC reckoned the computation of backwages only from the time petitioner filed

his Complaint for illegal dismissal before the Labor Arbiter. 7 The NLRC further modified the

Labor Arbiter's Decision by deleting the order reinstating petitioner to his former position in

view of the confidential nature of the latter's employment as a salesman, which exposed him to

voluminous financial transactions involving the property of respondent CCBP. The NLRC

likewise deleted the Labor Arbiter's award for attorney's fees. The fallo of the NLRC Decision

reads: cdasia2005

WHEREFORE, the decision dated 30 April 2005 is MODIFIED. The order

reinstating [herein petitioner] is deleted. [Respondents CCBP and Taguibao]

are hereby ordered to pay [petitioner] the following:

1.Backwages:

24 October 2004 to 30 April 2005

Salary — P13,000 x 6.2 months=P80,200.00

13th month pay — P80,600=6,716.67

––––––––––––––––––

12P87,316.67

2.Separation Pay

1 September 2000 to 30 April 2005

P13,000 x 5 years=P65,000.00

–––––––––––

P152,316.67

The award of 10% attorney's fees is deleted.

All the parties, namely petitioner and respondents CCBP and Taguibao, moved for the

reconsideration of the foregoing NLRC Decision. Petitioner, on one hand, maintained that the

reckoning point for the computation of his backwages must be from the time his employment

was unlawfully terminated, and not from the institution of his Complaint for illegal dismissal.

Respondents CCBP and Taguibao, on the other hand, reiterated their previous position that

petitioner's employment was terminated only after the expiration of the fixed period for the

same; and prayed that the NLRC vacate its previous finding of illegal dismissal.

In a Resolution dated 13 July 2006, the NLRC denied the Motions for Reconsideration of all

the parties for lack of a valid reason to disturb its earlier disposition. aIAcCH

From the 13 July 2006 Resolution of the NLRC, only petitioner elevated his case before the

Court of Appeals by filing a Petition for Certiorari, which was docketed as CA-G.R. S.P. No.

96343. Petitioner averred in his Petition that the NLRC abused its discretion in ignoring the

established facts and legal principles when it modified the award for his backwages and deleted

the order for his reinstatement.

The Court of Appeals, however, in its Resolution dated 10 November 2006, dismissed

petitioner's Petition for Certiorari for his failure to give any explanation why a copy of the said

Petition was not personally served upon the counsel of the adverse parties. aAIcEH

Since petitioner failed to timely file a Motion for Reconsideration, the Resolution dated 10

November 2006 of the Court of Appeals became final and executory, and an Entry of Judgment

was made in CA-G.R. S.P. No. 96343 on 2 December 2006.

On 19 July 2007, petitioner's new counsel filed an Entry of Appearance with an Urgent Motion

for Reconsideration. Petitioner, through his new counsel, sought for the liberality of the Court

of Appeals, faulting his former counsel for the procedural defects of his Petition and for his

failure to seasonably seek reconsideration of the 10 November 2006 Resolution of the appellate

court. Also, this time, it would appear that petitioner provided the explanation required by

Section 11, Rule 13 of the Revised Rules of Court.

In a Resolution dated 9 November 2007, the Court of Appeals denied petitioner's Urgent

Motion for Reconsideration for being filed out of time.

Hence, petitioner comes before this Court via the instant Special Civil Action

for Certiorari assailing the Resolutions dated 10 November 2006 and 9 November 2007 of the

Court of Appeals. Petitioner raises the following issues in the Petition at bar:

I.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSED

ITS DISCRETION IN NOT EXCUSING PETITIONER'S PROCEDURAL

LAPSES.

II.

WHETHER OR NOT THE NLRC GRAVELY ABUSED ITS DISCRETION

IN REDUCING THE AMOUNT OF BACKWAGES AWARDED

COMPUTED FROM THE TIME THE COMPLAINT FOR ILLEGAL

DISMISSAL WAS FILED. aTcIEH

III.

WHETHER OR NOT THE NLRC GRAVELY ABUSED ITS DISCRETION

IN ORDERING THE PAYMENT OF SEPARATION PAY IN LIEU OF

REINSTATEMENT.

IV.

WHETHER OR NOT THE NLRC GRAVELY ABUSED ITS DISCRETION

IN DELETING THE AWARD FOR ATTORNEY'S FEE.

The Court first disposes the procedural issues involved in the present case.

It is evident from a perusal of the records that petitioner indeed failed to provide the Court of

Appeals a written explanation as to why he did not personally serve a copy of his Petition

therein upon the adverse parties, as required by Section 11, Rule 13 8 of the Revised Rules of

Court. The records also readily reveal that petitioner did not file a timely Motion for

Reconsideration of the 10 November 2006 Resolution of the Court of Appeals.

Petitioner, however, submits that he raised meritorious arguments in his Petition before the

Court of Appeals, and the dismissal thereof on a mere technicality defeated the greater interest

of substantial justice. Petitioner attributes the technical flaws committed before the appellate

court to his former counsel, and urges the Court to excuse him therefrom since compliance with

the procedural rules calls for the application of legal knowledge and expertise which he, as a

layman, cannot be expected to know. Petitioner, thus, prays that this Court give his Petition due

course and set aside the Resolutions dated 10 November 2006 and 9 November 2007 of the

Court of Appeals in CA-G.R. SP No. 96343. DCIAST For their part, respondents CCBP and

Taguibao had long conceded in this battle when they no longer appealed the 31 May 2006

Decision of the NLRC, therefore, rendering the same final and executory with respect to them.

Yet, respondents CCBP and Taguibao still insist before this Court that petitioner was not

illegally dismissed, since he was employed for a fixed-term only, and his services were

terminated upon the expiration thereof. Respondents CCBP and Taguibao also argue that

petitioner's procedural faux pas cannot be excused by merely attributing the same to his former

counsel, in view of the doctrinal rule that negligence of the counsel binds his client.

The Court rules in favor of petitioner.

It is true that for petitioner's failure to comply with Section 11, Rule 13 of the Revised Rules of

Court, his petition should be expunged from the records. In the case of Solar Team

Entertainment, Inc. v. Ricafort, 9 the Court stressed the mandatory character of Section 11,

Rule 13, viz.:

We thus take this opportunity to clarify that under Section 11, Rule 13 of the

1997 Rules of Civil Procedure, personal service and filing is the general rule,

and resort to other modes of service and filing, the exception. Henceforth,

whenever personal service or filing is practicable, in light of the circumstances

of time, place and person, personal service or filing is mandatory. Only when

personal service or filing is not practicable may resort to other modes be had,

which must then be accompanied by a written explanation as to why personal

service or filing was not practicable to begin with. In adjudging the plausibility

of an explanation, a court shall likewise consider the importance of the subject

matter of the case or the issues involved therein, and the prima facie merit of

the pleading sought to be expunged for violation of Section 11. This Court

cannot rule otherwise, lest we allow circumvention of the innovation

introduced by the 1997 Rules in order to obviate delay in the administration of

justice. TAHIED

Nevertheless, the Rules of Court itself calls for its liberal construction, with the view of

promoting their objective of securing a just, speedy and inexpensive disposition of every action

and proceeding. 10 The Court is fully aware that procedural rules are not to be belittled or

simply disregarded for these prescribed procedures insure an orderly and speedy administration

of justice. However, it is equally true that litigation is not merely a game of technicalities. Law

and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of

even the most mandatory character, mindful of the duty to reconcile both the need to put an end

to litigation speedily and the parties' right to an opportunity to be heard. 11

In numerous cases, 12 the Court has allowed liberal construction of Section 11, Rule 13 of the

Revised Rules of Court when doing so would be in the service of the demands of substantial

justice and in the exercise of the equity jurisdiction of this Court. In one such case, Fulgencio v.

National Labor Relations Commission, 13 this Court provided the following justification for its

non-insistence on a written explanation as required by Section 11, Rule 13 of the Revised Rules

of Court:

The rules of procedure are merely tools designed to facilitate the attainment of

justice. They were conceived and promulgated to effectively aid the court in

the dispensation of justice. Courts are not slaves to or robots of technical rules,

shorn of judicial discretion. In rendering justice, courts have always been, as

they ought to be, conscientiously guided by the norm that on the balance,

technicalities take a backseat against substantive rights, and not the other way

around. Thus, if the application of the Rules would tend to frustrate rather than

promote justice, it is always within our power to suspend the rules, or except a

particular case from its operation. AIcECS

The call for a liberal interpretation of the Rules is even more strident in the instant case which

petitioner's former counsel was obviously negligent in handling his case before the Court of

Appeals. It was petitioner's former counsel who failed to attach the required explanation to the

Petition in CA-G.R. SP No. 96343. Said counsel did not bother to inform petitioner, his client,

of the 10 November 2006 Resolution of the appellate court dismissing the Petition for lack of

the required explanation. Worse, said counsel totally abandoned petitioner's case by merely

allowing the reglementary period for filing a Motion for Reconsideration to lapse without

taking any remedial steps; thus, the 10 November 2006 Resolution became final and executory.

The basic general rule is that the negligence of counsel binds the client. Hence, if counsel

commits a mistake in the course of litigation, thereby resulting in his losing the case, his client

must perforce suffer the consequences of the mistake. The reason for the rule is to avoid the

possibility that every losing party would raise the issue of negligence of his or her counsel to

escape an adverse decision of the court, to the detriment of our justice system, as no party

would ever accept a losing verdict. This general rule, however, pertains only to simple

negligence of the lawyer.Where the negligence of counsel is one that is so gross, palpable,

pervasive, reckless and inexcusable, then it does not bind the client since, in such a case, the

client is effectively deprived of his or her day in court. 14

The circumstances of this case qualify it under the exception, rather than the general rule. The

negligence of petitioner's former counsel may be considered gross since it invariably resulted to

the foreclosure of remedies otherwise readily available to the petitioner. Not only was

petitioner deprived of the opportunity to bring his case before the Court of Appeals with the

outright dismissal of his Petition on a technicality, but he was also robbed of the chance to seek

reconsideration of the dismissal of his Petition. What further impel this Court to heed the call

for substantial justice are the pressing merits of this case which, if left overshadowed by

technicalities, could result in flagrant violations of the provisions of the Labor Code and of the

categorical mandate of the Constitution affording protection to labor. CaHAcT Higher interests

of justice and equity demand that petitioner should not be denied his day in court and made him

to suffer for his counsel's indiscretions. To cling to the general rule in this case would only to

condone, rather than rectify, a serious injustice to a party — whose only fault was to repose his

faith and trust in his previous counsel — and close our eyes to the glaring grave abuse of

discretion committed by the NLRC.

This Court is aware that in the instant case, since petitioner's appeal before the Court of

Appeals is to be given due course, the normal procedure is for us to remand the case to the

appellate court for further proceedings. The Court, however, dispensed with this time-

consuming procedure, since there is enough basis on which proper evaluation of the merits of

the case may be had. Remand of this case would serve no purpose save to further delay its

disposition contrary to the spirit of fair play. It is already an accepted rule of procedure for us to

strive to settle the entire controversy in a single proceeding, leaving no root or branch to bear

the seed of future litigation. Having thus settled the procedural matters in the instant case, the

Court now proceeds to resolve the substantive issues.

The Court is convinced beyond cavil that the NLRC committed grave abuse of its discretion,

amounting to lack or excess of jurisdiction, in modifying the 30 April 2005 Decision of the

Labor Arbiter, for in so doing, the NLRC not only disregarded the elementary statutory and

jurisprudential principles, but also violated the basic principles of social justice and protection

to labor enshrined in the Constitution. HaTISE

Explicit is Art. 279 of the Labor Code which states:

Art. 279.Security of Tenure. — In cases of regular employment, the employer

shall not terminate the services of an employee except for a just cause or when

authorized by this Title. An employee who is unjustly dismissed from work

shall be entitled to reinstatement without loss of seniority rights and other

privileges and to his full backwages, inclusive of allowances, and to his other

benefits or their monetary equivalent computed from the time his

compensation was withheld from him up to the time of his actual

reinstatement.

Applying the above-quoted statutory provision, this Court decreed in Pheschem Industrial

Corporation v. Moldez: 16

Article 279 of the Labor Code provides that an illegally dismissed employee

shall be entitled, inter alia, to the payment of his full backwages, inclusive of

allowances and to his other benefits or their monetary equivalent computed

from the time that his compensation was withheld from him, i.e., from the time

of his illegal dismissal, up to the time of his actual reinstatement. Thus, where

reinstatement is adjudged, the award of backwages and other benefits

continues beyond the date of the Labor Arbiter's Decision ordering

reinstatement and extends up to the time said order of reinstatement is actually

carried out. (Emphasis supplied.)

The Court was more emphatic in Philippine Industrial Security Agency Corporation v.

Dapiton, 17 when it ruled that backwages had to be paid by the employer as part of the price or

penalty he had to pay for illegally dismissing his employee. It was to be computed from the

time of the employee's illegal dismissal (or from the time his compensation was withheld from

him) up to the time of his reinstatement. One of the natural consequences of a finding that an

employee has been illegally dismissed is the payment of backwages corresponding to the

period from his dismissal up to actual reinstatement. The statutory intent of this matter is

clearly discernible. The payment of backwages allows the employee to recover from the

employer that which he has lost by way of wages as a result of his dismissal. 18 Logically, it

must be computed from the date of petitioner's illegal dismissal up to the time of actual

reinstatement. There can be no gap or interruption, lest we defeat the very reason of the law in

granting the same. That petitioner did not immediately file his Complaint should not affect or

diminish his right to backwages, for it is a right clearly granted to him by law — should he be

found to have been illegally dismissed —and for as long as his cause of action has not been

barred by prescription.

The law fixes the period of time within which petitioner could seek remedy for his illegal

dismissal and for as long as he filed his Complaint within the prescriptive period, he shall be

entitled to the full protection of his right to backwages. In illegal dismissal cases, the employee

concerned is given a period of four years from the time of his illegal dismissal within which to

institute the complaint. This is based on Article 1146 of the New Civil Code which states that

actions based upon an injury to the rights of the plaintiff must be brought within four

years. 19 The four-year prescriptive period shall commence to run only upon the accrual of a

cause of action of the worker. 20 Here, petitioner was dismissed from service on 15 September

2001. He filed his complaint for illegal dismissal on 14 June 2004. Clearly, then, the instant

case was filed within the prescriptive period.

The Labor Arbiter, in his computation of the award for backwages to petitioner, had followed

the long-settled rule 21 that full backwages should be awarded, to be reckoned from the time of

illegal dismissal up to actual reinstatement. The NLRC, however, modified the Labor Arbiter's

award for backwages by computing the same only from the time petitioner filed his Complaint

for illegal dismissal before the Labor Arbiter, i.e., on 24 October 2004, up to the day when the

Labor Arbiter promulgated his judgment, i.e., 30 April 2005. The NLRC provided no other

explanation for its modification except that it was just and equitable to reduce the amount of

backwages given to petitioner since, having been dismissed on 15 September 2001, it took him

more than three years to file his Complaint against respondents CCBP and Taguibao. AacCIT

We find no justice or rationality in the distinction created by the NLRC; and when there is

neither justice or rationality, the distinction transgresses the elementary principle of equal

protection and must be stricken out. Equal protection requires that all persons or things

similarly situated should be treated alike, as to both rights conferred and responsibilities

imposed. 22 There is no sufficient basis why petitioner should not be placed in the same plane

with other illegally dismissed employees who were awarded backwages without qualification.

Herein petitioner, having been unjustly dismissed from work, is entitled to reinstatement

without loss of seniority rights and other privileges and to full backwages, inclusive of

allowances, and to other benefits or their monetary equivalents computed from the time

compensation was withheld up to the time of actual reinstatement. 23 Accordingly, backwages

must be awarded to petitioner in the amount to be computed from the time his employment was

unlawfully terminated by respondents CCBP and Taguibao on 15 September 2001 up to the

time he was actually reinstated on 1 March 2006. We also do not agree with the NLRC in

deleting the directive of the Labor Arbiter for the reinstatement of petitioner to his former

position, on the flimsy excuse that the petitioner's position as Route Salesman was confidential

in nature and that the relationship between petitioner and respondents CCBP and Taguibao was

already strained.

To protect the employee's security of tenure, the Court has emphasized that the doctrine of

"strained relations" should be strictly applied so as not to deprive an illegally dismissed

employee of his right to reinstatement. Every labor dispute almost always results in "strained

relations", and the phrase cannot be given an overarching interpretation; otherwise, an unjustly

dismissed employee can never be reinstated. 24 The assumption of strained relations was

already debunked by the fact that as early as March 2006 petitioner returned to work for

respondent CCBP, without any antagonism having been reported thus far by any of the parties.

Neither can we sustain the NLRC's conclusion that petitioner's position is confidential in

nature. Receipt of proceeds from sales of respondent CCBP's products does not make petitioner

a confidential employee. A confidential employee is one who (1) assists or acts in a

confidential capacity, in regard to (2) persons who formulate, determine, and effectuate

management policies specifically in the field of labor relations. 25 Verily, petitioner's job as a

salesman does not fall under this qualification.

Finally, the Court overrules the deletion by the NLRC of the Labor Arbiter's award for

attorney's fees to petitioner. Petitioner is evidently entitled to attorney's fees, since he was

compelled to litigate 26 to protect his interest by reason of unjustified and unlawful termination

of his employment by respondents CCBP and Taguibao.

WHEREFORE, premises considered, the instant Petition is GRANTED. The Resolutions dated

10 November 2006 and 9 November 2007 of the Court of Appeals in CA-G.R. SP No. 96343

and the Decision dated 31 May 2006 of the NLRC in NLRC NCR CA No. 044658-05 are

REVERSED and SET ASIDE. The Decision of the Labor Arbiter in NLRC-NCR Case No. 00-

06-07161-14 is hereby REINSTATED. Let the records of this case be remanded to the Labor

Arbiter for implementation of this Decision, and he shall report his compliance herewith within

ten (10) days from receipt hereof. IDTSEH

SO ORDERED.

PLUS BUILDERS, INC., and EDGARDO C. GARCIA, complainants, vs. ATTY.

ANASTACIO E. REVILLA, JR., respondent.

R E S O L U T I O N

NACHURA, J p:

Before us is a motion for reconsideration of our Decision dated September 13, 2006, finding

respondent guilty of gross misconduct for committing a willful and intentional falsehood before

the court, misusing court procedure and processes to delay the execution of a judgment and

collaborating with non-lawyers in the illegal practice of law.

To recall, the antecedents of the case are as follows:

On November 15, 1999, a decision was rendered by the Provincial Adjudicator of Cavite

(PARAD) in favor of herein complainant, Plus Builders, Inc. and against the tenants/farmers

Leopoldo de Guzman, Heirs of Bienvenido de Guzman, Apolonio Ilas and Gloria Martirez

Siongco, Heirs of Faustino Siongco, Serafin Santarin, Benigno Alvarez and Maria Esguerra,

who were the clients of respondent, Atty. Anastacio E. Revilla, Jr. The PARAD found that

respondent's clients were mere tenants and not rightful possessors/owners of the subject land.

The case was elevated all the way up to the Supreme Court, with this Court sustaining

complainant's rights over the land. Continuing to pursue his clients' lost cause, respondent was

found to have committed intentional falsehood; and misused court processes with the intention

to delay the execution of the decision through the filing of several motions, petitions for

temporary restraining orders, and the last, an action to quiet title despite the finality of the

decision. Furthermore, he allowed non-lawyers to engage in the unauthorized practice of law

— holding themselves out as his partners/associates in the law firm. TcCSIa

The dispositive portion of the decision thus reads:

WHEREFORE, Anastacio E. Revilla, Jr. is hereby found guilty of gross

misconduct and is SUSPENDED for two years from the practice of law,

effective upon his receipt of this Decision. He is warned that a repetition of the

same or similar acts will be dealt with more severely.

Let copies of this Decision be entered in the record of respondent as attorney

and served on the IBP, as well as on the court administrator who shall circulate

it to all courts for their information and guidance.

Respondent duly filed a motion for reconsideration within the reglementary period, appealing

to the Court to take a second look at his case and praying that the penalty of suspension of two

years be reduced to mere reprimand or admonition for the sake of his family and the poor

clients he was defending.

Respondent maintains that he did not commit the acts complained of. The courses of action he

took were not meant to unduly delay the execution of the DARAB Decision dated November

19, 1999, but were based on his serious study, research and experience as a litigation lawyer for

more than 20 years and on the facts given to him by his clients in the DARAB case. He

believes that the courses of action he took were valid and proper legal theory designed to

protect the rights and interests of Leopoldo de Guzman, et al. 3 He stresses that he was not the

original lawyer in this case. The lawyer-client relationship with the former lawyer was

terminated because Leopoldo de Guzman, et al. felt that their former counsel did not

explain/argue their position very well, refused to listen to them and, in fact, even castigated

them. As the new counsel, respondent candidly relied on what the tenants/farmers told him in

the course of his interview. They maintained that they had been in open, adverse, continuous

and notorious possession of the land in the concept of an owner for more than 50 years. Thus,

the filing of the action to quiet title was resorted to in order to determine the rights of his clients

respecting the subject property. He avers that he merely exhausted all possible remedies and

defenses to which his clients were entitled under the law, considering that his clients were

subjected to harassment and threats of physical harm and summary eviction by the

complainant. 4 He posits that he was only being protective of the interest of his clients as a

good father would be protective of his own family, 5 and that his services to Leopoldo de

Guzman, et al. were almost pro bono. 6

Anent the issue that he permitted his name to be used for unauthorized practice of law, he

humbly submits that there was actually no sufficient evidence to prove the same or did he fail

to dispute this, contrary to the findings of the Integrated Bar of the Philippines (IBP). He was

counsel of Leopoldo de Guzman, et al. only and not of the cooperative Kalayaan Development

Cooperative (KDC). He was just holding his office in this cooperative, together with Attys.

Dominador Ferrer, Efren Ambrocio, the late Alfredo Caloico and Marciano Villavert. He

signed the retainer agreement with Atty. Dominador to formalize their lawyer-client

relationship, and the complainants were fully aware of such arrangement. 7

Finally, he submits that if he is indeed guilty of violating the rules in the courses of action he

took in behalf of his clients, he apologizes and supplicates the Court for kind consideration,

pardon and forgiveness. He reiterates that he does not deserve the penalty of two years'

suspension, considering that the complaint fails to show him wanting in character, honesty, and

probity; in fact, he has been a member of the bar for more than 20 years, served as former

president of the IBP Marinduque Chapter, a legal aide lawyer of IBP Quezon City handling

detention prisoners and pro bono cases, and is also a member of the Couples for Christ, and has

had strict training in the law school he graduated from and the law offices he worked

with. 8 He is the sole breadwinner in the family with a wife who is jobless, four (4) children

who are in school, a mother who is bedridden and a sick sister to support. The family's only

source of income is respondent's private practice of law, a work he has been engaged in for

more than twenty-five (25) years up to the present.

On August 15, 2008, the Office of the Bar Confidant (OBC) received a letter from respondent,

requesting that he be issued a clearance for the renewal of his notarial commission. Respondent

stated therein that he was aware of the pendency of the administrative cases 10 against him, but

pointed out that said cases had not yet been resolved with finality. Respondent sought

consideration and compassion for the issuance of the clearance — considering present

economic/financial difficulties — and reiterating the fact that he was the sole breadwinner in

the family.

It is the rule that when a lawyer accepts a case, he is expected to give his full attention,

diligence, skill and competence to the case, regardless of its importance and whether he accepts

it for a fee or for free. 11 A lawyer's devotion to his client's cause not only requires but also

entitles him to deploy every honorable means to secure for the client what is justly due him or

to present every defense provided by law to enable the latter's cause to succeed. 12 In this case,

respondent may not be wanting in this regard. On the contrary, it is apparent that the

respondent's acts complained of were committed out of his over-zealousness and misguided

desire to protect the interests of his clients who were poor and uneducated. We are not

unmindful of his dedication and conviction in defending the less fortunate. Taking the cudgels

from the former lawyer in this case is rather commendable, but respondent should not forget his

first and foremost responsibility as an officer of the court. We stress what we have stated in our

decision that, in support of the cause of their clients, lawyers have the duty to present every

remedy or defense within the authority of the law. This obligation, however, is not to be

performed at the expense of truth and justice. 13 This is the criterion that must be borne in

mind in every exertion a lawyer gives to his case. 14 Under the Code of Professional

Responsibility, a lawyer has the duty to assist in the speedy and efficient administration of

justice, and is enjoined from unduly delaying a case by impeding execution of a judgment or by

misusing court processes.

Certainly, violations of these canons cannot be countenanced, as respondent must have realized

with the sanction he received from this Court. However, the Court also knows how to show

compassion and will not hesitate to refrain from imposing the appropriate penalties in the

presence of mitigating factors, such as the respondent's length of service, acknowledgment of

his or her infractions and feeling of remorse, family circumstances, humanitarian and equitable

considerations, and respondent's advanced age, among other things, which have varying

significance in the Court's determination of the imposable penalty. Thus, after a careful

consideration of herein respondent's motion for reconsideration and humble acknowledgment

of his misfeasance, we are persuaded to extend a degree of leniency towards him. 16 We find

the suspension of six (6) months from the practice of law sufficient in this case.

IN VIEW OF THE FOREGOING, the letter-request dated August 15, 2008 is NOTED.

Respondent's Motion for Reconsideration is PARTIALLY GRANTED. The Decision dated

September 13, 2006 is hereby MODIFIED in that respondent is SUSPENDED from the

practice of law for a period of six (6) months, effective upon receipt of this Resolution.

Respondent is DIRECTED to inform the Court of the date of his receipt of said Resolution

within ten (10) days from receipt thereof.

Let copies of this Decision be entered in the record of respondent as attorney and served on the

IBP, as well as on the Court Administrator, who shall circulate it to all courts for their

information and guidance.

EUGENIA MENDOZA, complainant, vs. ATTY. VICTOR V.

DECIEMBRE, respondent.

R E S O L U T I O N

PER CURIAM p:

Any departure from the path which a lawyer must follow as demanded by the

virtues of his profession shall not be tolerated by this Court as the disciplining

authority for there is perhaps no profession after that of the sacred ministry in

which a high-toned morality is more imperative than that of law. 1 THIcCA

Before the Court is the Petition filed by Eugenia Mendoza (complainant) dated September 19,

2000, seeking the disbarment of Atty. Victor V. Deciembre (respondent) for his acts of

fraudulently filling up blank postdated checks without her authority and using the same for

filing unfounded criminal suits against her.

Complainant, a mail sorter at the Central Post Office Manila, averred that: On October 13,

1998, she borrowed from Rodela Loans, Inc., through respondent, the amount of P20,000.00

payable in six months at 20% interest, secured by 12 blank checks, with numbers 47253, 47256

to 47266, drawn against the Postal Bank. Although she was unable to faithfully pay her

obligations on their due dates, she made remittances, however, to respondent's Metrobank

account from November 11, 1998 to March 15, 1999 in the total sum of

P12,910.00. 2 Claiming that the amounts remitted were not enough to cover the penalties,

interests and other charges, respondent warned complainant that he would deposit Postal Check

No. 47253 filled up by him on March 30, 1999 in the amount of P16,000.00. Afraid that

respondent might sue her in court, complainant made good said check and respondent was able

to encash the same on March 30, 1999. Thereafter, complainant made subsequent payments to

the Metrobank account of respondent from April 13, 1999 to October 15, 1999, 3 thereby

paying respondent the total sum of P35,690.00.

Complainant further claimed that, later, respondent filled up two of the postal checks she issued

in blank, Check Nos. 47261 and 47262 with the amount of P50,000.00 each and with the dates

January 15, 2000 and January 20, 2000 respectively, which respondent claims was in exchange

for the P100,000.00 cash that complainant received on November 15, 1999. Complainant

insisted however that she never borrowed P100,000.00 from respondent and that it was unlikely

that respondent would lend her, a mail sorter with a basic monthly salary of less than

P6,000.00, such amount. Complainant also claimed that respondent victimized other employees

of the Postal Office by filling up, without authorization, blank checks issued to him as

condition for loans.

In his Comment dated January 18, 2000, respondent averred that his dealings with complainant

were done in his private capacity and not as a lawyer, and that when he filed a complaint for

violation of Batas Pambansa Blg. (B.P. Blg.) 22 against complainant, he was only vindicating

his rights as a private citizen. He alleged further that: it was complainant who deliberately

deceived him by not honoring her commitment to their November 15, 1999 transaction

involving P100,000.00 and covered by two checks which bounced for the reason "account

closed"; the October 13, 1999 transaction was a separate and distinct transaction; complainant

filed the disbarment case against him to get even with him for filing the estafa and B.P. Blg. 22

case against the former; complainant's claim that respondent filled up the blank checks issued

by complainant is a complete lie; the truth was that the checks referred to were already filled up

when complainant affixed her signature thereto; it was unbelievable that complainant would

issue blank checks, and that she was a mere low-salaried employee, since she was able to

maintain several checking accounts; and if he really intended to defraud complainant, he would

have written a higher amount on the checks instead of only P50,000.00. 6 DaAETS

The case was referred to the Integrated Bar of the Philippines 7 (IBP), and the parties were

required to file their position papers. 8

In her Position Paper, complainant, apart from reiterating her earlier claims, alleged that

respondent, after the hearing on the disbarment case before the IBP on September 5, 2001,

again filled up three of her blank checks, Check Nos. 47263, 47264 and 47265, totaling

P100,000.00, to serve as basis for another criminal complaint, since the earlier estafa and B.P.

Blg. 22 case filed by respondent against her before the Office of the Prosecutor of Pasig City

was dismissed on August 14, 2000.

Respondent insisted in his Position Paper, however, that complainant borrowed P100,000.00 in

exchange for two postdated checks, and that since he had known complainant for quite some

time, he accepted said checks on complainant's assurance that they were good as cash. 10

Investigating Commissioner Wilfredo E.J.E. Reyes submitted his Report dated September 6,

2002, finding respondent guilty of dishonesty and recommended respondent's suspension from

the practice of law for one year. 11 The Report was adopted and approved by the IBP Board of

Governors in its Resolution dated October 19, 2002. 12 Respondent filed a Motion for

Reconsideration which was denied, however, by the IBP Board of Governors on January 25,

2003 on the ground that it no longer had jurisdiction on the matter, as the same was already

endorsed to the Supreme Court.

On June 9, 2003 this Court's Second Division issued a Resolution remanding the case to the

IBP for the conduct of formal investigation, as the Report of Commissioner Reyes was based

merely on the pleadings submitted.

After hearings were conducted, 15 Investigating Commissioner Dennis A. B. Funa submitted

his Report dated December 5, 2006 finding respondent guilty of gross misconduct and violation

of the Code of Professional Responsibility, and recommended respondent's suspension for three

years.

Commissioner Funa held that while it was difficult at first to determine who between

complainant and respondent was telling the truth, in the end, respondent himself, with his own

contradicting allegations, showed that complainant's version should be given more credence. 17

Commissioner Funa noted that although complainant's total obligation to respondent was only

P24,000.00, since the loan obtained by complainant on October 13, 1998 was P20,000.00 at

20% interest payable in six months, by April 13, 1999, however, complainant had actually paid

respondent the total amount of P30,240.00. Thus, even though the payment was irregularly

given, respondent actually earned more than the agreed upon 20% interest. Moreover, the

amounts of P50,000.00 as well as the name of the payee in the subject checks were all

typewritten. 18 IDaCcS

Commissioner Funa also gave credence to complainant's claim that it was respondent's modus

operandi to demand a certain amount as "settlement" for the dropping of estafa complaints

against his borrowers. As Commissioner Funa explains:

[A] complaint for estafa/violation of BP 22 was filed against [complainant]

before the Prosecutor's Office in Pasig City on June 21, 2000. On August 14,

2000, the Prosecutor's Office dismissed the complaint. On October 2, 2000,

Complainant filed this disbarment case. About one year later, or on September

5, 2001, Complainant was surprised to receive a demand letter demanding

payment once again for another P100,000.00 corresponding to another three

checks, Check Nos. 0047263, 0047264 and 0047265.

Furthermore, Respondent filed another criminal complaint for estafa/violation

of BP 22 dated October 17, 2001, this time before the QC Prosecutor's Office.

The prosecutor's office recommended the filing of the criminal case for one of

the checks.

Respondent's version, on the other hand, is that Check Nos. 0047261 and

0047262 were given to him for loans (rediscounting) contacted on November

15, 1999 and not for a loan contracted on October 13, 1998. . . . He claims that

the October 13, 1998 transaction is an earlier and different transaction. . . . On

the very next day, or on November 16, 1999, Complainant again allegedly

contracted another loan for another P100,000.00 for which Complainant

allegedly issued the following Postal Bank checks [Check No. 0047263 dated

May 16, 2001 for P20,000.00; Check No. 0047264 dated May 30, 2001 for

P30,000.00 and Check No. 0047265 dated June 15, 2001 for P50,000.00].

Oddly though, Respondent never narrated that Complainant obtained a second

loan on November 16, 1999 in his Answer [dated January 18, 2000] and in his

Position Paper [dated October 8, 2001]. He did not even discuss it in his

Motion for Reconsideration dated December 20, 2002, although he attached

the Resolution of the QC Prosecutor's Office. Clearly, the November 16, 1999

transactionwas a mere concoction that did not actually occur. It was a mere

afterthought. Respondent once again filled-up three of the other checks in his

possession (checks dated May 16, 2001, May 30, 2001 and June 15, 2001) so

that he can again file another estafa/BP 22 case against Complainant (October

17, 2001) AFTER the earlier complaint he had filed before the Pasig City

Prosecutor's Office had been dismissed (August 14, 2000) and AFTER herein

Complainant had filed this disbarment case (October 2, 2000).

More telling, and this is where Respondent gets caught, are the circumstances

attending this second loan of November 16, 1999. In addition to not

mentioning it at all in his Answer, his Position Paper, and his Motion for

Reconsideration, which makes it very strange, is that fact that he alleges that

the loan was contracted on November 16, 1999 for which Complainant

supposedly issued checks dated May 16, 2001, May 30, 2001 and June 15,

2001. Note that May 16, 2001 is eighteen (18 months), or 1 year and 6 months,

from November 16, 1999. This is strangely a long period for loans of this

nature. This loan was supposedly not made in writing, only verbally. With no

collaterals and no guarantors. Clearly, this is a non-existent transaction. It was

merely concocted by Respondent. ACIEaH

More importantly, and this is where Respondent commits his fatal

blunder thus exposing his illegal machinations, Complainant allegedly

received P100,000.00 in cash on November 16, 1999 for which Complainant

gave Respondent, in return, checks also amounting to P100,000.00. The

checks were supposedly dated May 16, 2001, May 30, 2001 and June 15, 2001

. . . .

Now then, would not Respondent suffer a financial loss if he gave away

P100,000.00 on November 16, 1999 and then also receive P100,000.00 on

May 16, 2001 or 1 year and 6 months later? A person engaged in lending

business would want to earn interest. The same also with a person re-

discounting checks. In this instance, in his haste to concoct a story,

Respondent forgot to factor in the interest. At 20% interest, assuming that it is

per annum, for 1 1/2 years, Respondent should have collected from

Complainant at least P130,000.00. And yet the checks he filled up totaled only

P100,000.00. The same is true in re-discounting a check. If Complainant gave

Respondent P100,000.00 in checks, Respondent should be giving Complainant

an amount less than P100,000.00. This exposes his story as a fabrication.

The same observations can be made of the first loan of P100,000.00 secured

by Check Nos. 0047261 and 0047262.

More strangely, during the course of the entire investigation, Respondent

never touched on what transpired on the dates of November 15 and 16, 1999.

Consider that Complainant's position is that no such transaction took place on

November 15 and 16. And yet, Respondent never made any effort to establish

that Complainant borrowed P100,000.00 on November 15 and then another

P100,000.00 again on November 16. Respondent merely focused on

establishing that Complainant's checks bounced — a fact already admitted

several times by the Complainant — and the reasons for which were already

explained by Complainant. This only shows the lack of candor of

Respondent. 19

We take note further that Complainant is a mere mail sorter earning less than

P6,000.00 per month. Who would lend P200,000.00 to an employee earning

such a salary, nowadays, and not even secure such a loan with a written

document or a collateral? It defies realities of finance, economy and business.

It even defies common sense. 20

Commissioner Funa also took note that the instant case had practically the same set of facts as

in Olbes v. Deciembre 21 and Acosta v. Deciembre. 22 In Olbes, complainants therein, who

were also postal employees, averred that respondent without authority filled up a total of four

checks to represent a total of P200,000.00. In Acosta, the complainant therein, another postal

employee, averred that respondent filled up two blank checks for a total of

P100,000.00. Acosta, however, was dismissed by Commissioner Lydia Navarro on the ground

that it did not involve any lawyer-client relationship, which ground, Commissioner Funa

believes, is erroneous. 23 aITECA

On May 31, 2007, the IBP Board of Governors issued a resolution adopting and approving

Commissioner Funa's Report, but modifying the penalty, as follows:

RESOLUTION NO. XVII-2007-219

Adm. Case No. 5338

Eugenia Mendoza vs. Atty. Victor V. Deciembre

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, with modification, the Report and Recommendation of the

Investigating Commissioner of the above-entitled case, herein made part of

this Resolution as Annex "A"; and, finding the recommendation fully

supported by the evidence on record and the applicable laws and rules, and

considering Respondent's gross misconduct and for practically found guilty of

committing the same set of facts alleged in AC 5365, Atty. Victor V.

Deciembre is herebySUSPENDED INDEFINITELY from the practice of law

to be served successively after the lifting of Respondent's Indefinite

Suspension.24

Although no motion for reconsideration was filed before the IBP Board of Governors, nor a

petition for review before this Court as reported by IBP and Office of the Bar Confidant, the

Court considers the IBP Resolution merely recommendatory and therefore would not attain

finality, pursuant to par. (b), Section 12, Rule 139-B of the Rules of Court. The IBP elevated to

this Court the entire records of the case for appropriate action.

The Court agrees with the findings of the IBP, but finds that disbarment and not just indefinite

suspension is in order.

The practice of law is not a right but merely a privilege bestowed by the State upon those who

show that they possess, and continue to possess, the qualifications required by law for the

conferment of such privilege. 25 A high sense of morality, honesty and fair dealing is expected

and required of members of the bar. 26 They must conduct themselves with great propriety, and

their behavior must be beyond reproach anywhere and at all times. 27

The fact that there is no attorney-client relationship in this case and the transactions entered

into by respondent were done in his private capacity cannot shield respondent, as a lawyer,

from liability.

A lawyer may be disciplined for acts committed even in his private capacity for acts which tend

to bring reproach on the legal profession or to injure it in the favorable opinion of the

public. 28 Indeed, there is no distinction as to whether the transgression is committed in a

lawyer's private life or in his professional capacity, for a lawyer may not divide his personality

as an attorney at one time and a mere citizen at another.29

In this case, evidence abounds that respondent has failed to live up to the standards required of

members of the legal profession. Specifically, respondent has transgressed provisions of the

Code of Professional Responsibility, to wit: IADCES

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land

and promote respect for law and legal processes.

Rule 1.01. — A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct.

xxx xxx xxx

CANON 7 — A lawyer shall at all times uphold the integrity and dignity of

the legal profession and support the activities of the integrated bar.

xxx xxx xxx

Rule 7.03.A lawyer shall not engage in conduct that adversely reflects on his

fitness to practice law, nor should he, whether in public or private life, behave

in a scandalous manner to the discredit of the legal profession.

As correctly observed by IBP Investigating Commissioner Funa, respondent failed to mention

in his Comment dated January 18, 2000, in his Position Paper dated October 8, 2001 and in his

Motion for Reconsideration dated December 20, 2002, the P100,000.00 loan which

complainant supposedly contracted on November 16, 1999. It is also questionable why the

checks dated May 16, 2001, May 30, 2001 and June 15, 2001 which were supposedly issued to

secure a loan contracted about 18 months earlier, i.e., November 16, 1999, were made without

any interest. The same is true with the checks dated January 15 and 20, 2000 in the total sum of

P100,000.00, which were supposed to secure a loan contracted on November 15, 1999, for the

same amount. Considering these circumstances and the sequence of dates when respondent

filed his criminal cases against complainant, and complainant her disbarment case against

respondent, what truly appears more believable is complainant's claim that respondent was

merely utilizing the blank checks, filling them up, and using them as bases for criminal cases in

order to harass complainant.

The Court also notes that the checks being refuted by complainant, dated January 15 and 20,

2000, May 16, 2001, May 30, 2001 and June 15, 2001 30 had its dates, amounts and payee's

name all typewritten, while the blanks on the check for P16,000.00 dated March 30, 1999

which complainant used to pay part of her original loan, were all filled up in her

handwriting. 31

It is also observed that the present case was not the only instance when respondent committed

his wrongful acts. In Olbes, 32 complainants therein contracted a loan from respondent in the

amount of P10,000.00 on July 1, 1999, for which they issued five blank checks as collateral.

Notwithstanding their full payment of the loan, respondent filled up four of the blank checks

with the amount of P50,000.00 each with different dates of maturity and used the same in filing

estafa and B.P. Blg. 22 cases against complainants. The Court, in imposing the penalty of

indefinite suspension on respondent, found his propensity for employing deceit and

misrepresentation as reprehensible and his misuse of the filled up checks, loathsome. 33

In Acosta, 34 complainant therein also averred that on August 1, 1998, she borrowed

P20,000.00 from respondent with an interest of 20% payable in six months and guaranteed by

twelve blank checks. Although she had already paid the total amount of P33,300.00, respondent

still demanded payments from her, and for her failure to comply therewith, respondent filed a

case against her before the City Prosecutor of Marikina City, using two of her blank checks

which respondent filled up with the total amount of P100,000.00. Unfortunately, the complaint

was dismissed by IBP Investigating Commissioner Navarro on October 2, 2001 on the ground

that the said transaction did not involve any lawyer-client relationship. 35 As correctly

observed by Commissioner Funa, such conclusion is erroneous, for a lawyer may be disciplined

even for acts not involving any attorney-client relationship. cCESaH

As manifested by these cases, respondent's offenses are manifold. First, he demands excessive

payments from his borrowers; then he fills up his borrowers' blank checks with fictitious

amounts, falsifying commercial documents for his material gain; and then he uses said checks

as bases for filing unfounded criminal suits against his borrowers in order to harass them. Such

acts manifest respondent's perversity of character, meriting his severance from the legal

profession.

While the power to disbar is exercised with great caution and is withheld whenever a lesser

penalty could accomplish the end desired, 36 the seriousness of respondent's offense compels

the Court to wield its supreme power of disbarment. Indeed, the Court will not hesitate to

remove an erring attorney from the esteemed brotherhood of lawyers where the evidence calls

for it. 37 This is because in the exercise of its disciplinary powers, the Court merely calls upon

a member of the Bar to account for his actuations as an officer of the Court, with the end in

view of preserving the purity of the legal profession and the proper and honest administration

of justice by purging the profession of members who by their misconduct have proved

themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to

the office of an attorney. 38

As respondent's misconduct brings intolerable dishonor to the legal profession, the severance of

his privilege to practice law for life is in order.

WHEREFORE, Atty. Victor V. Deciembre is hereby found GUILTY of GROSS

MISCONDUCT and VIOLATION of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code

of Professional Responsibility. He is DISBARRED from the practice of law and his name is

ordered stricken off the Roll of Attorneys effective immediately.

Let copies of this Resolution be furnished the Office of the Bar Confidant which shall forthwith

record it in the personal files of respondent; all the courts of the Philippines; the Integrated Bar

of the Philippines, which shall disseminate copies thereof to all its Chapters; and all

administrative and quasi-judicial agencies of the Republic of the Philippines.

SO ORDERED.

BACHRACH CORPORATION, petitioner, vs. PHILIPPINE PORTS

AUTHORITY, respondent.

D E C I S I O N

BRION, J p:

We have before us the Petition for Review on Certiorari 1 filed by the petitioner, Bachrach

Corporation (petitioner), that seeks to reverse the Court of Appeals (CA) rulings dismissing the

petitioner's appeal for failure to file an appeal brief. 2

ANTECEDENTS

The respondent Philippine Ports Authority (respondent), as lessor, entered into a 99-year

contract of lease with the petitioner over its properties denominated as Blocks 180 and 185. The

lease will expire in the years 2017 and 2018, respectively. Since the rentals for these properties

were based on the rates prevailing in the previous decades, the respondent imposed rate

increases. Separately from these properties, the respondent owned another property — Lot 8,

Block 101 — covered by its own lease contract that expired in 1992. This lease has not been

renewed, but the petitioner refused to vacate the premises. The respondent thus filed, and

prevailed in, an ejectment case involving this property against the petitioner.

The parties tried to extrajudicially settle their differences. A Compromise Agreement was

drafted in 1994, but was not fully executed by the parties. 3 Only the petitioner, its counsel, and

the respondent's counsel signed; the respondent's Board of Directors was not satisfied with the

terms and refused to sign the agreement. ICTcDA

To compel the respondent to implement the terms of the Compromise Agreement, the petitioner

filed a complaint for specific performance with the Regional Trial Court (RTC) of Manila,

Branch 42. The case was docketed as Civil Case No. 95-73399 and covered only the subjects of

the Compromise Agreement — Blocks 180 and 185. 4 Seeking to include Lot 8, Block 101 in

the complaint, the petitioner filed a Motion for Leave to File and for Admission of Attached

Supplemental and/or Amended Complaint. In an Order dated June 26, 2000, 5 the trial court

denied this motion, stating that:

The amendment/supplement sought in the instant motion seeks the inclusion

of Lot 8, Block 101 as one of the real properties subject matter of this case.

Granting for the sake of argument, but not in any way insinuating that plaintiff

has a right to demand performance of the "Compromise Agreement", this

Court can only mandate performance of its provisions. And considering that

the "Compromise Agreement" speaks only of Block Nos. 185 and 180, this

Court can only direct actual performance by defendant Philippine Ports

Authority of its terms and conditions, and that is with respect to the lease of

these blocks (185 and 180) and no other. It would therefore be a mistake for

this court to grant the motion and allow inclusion of Lot 8, Block 101, as one

of the subject matters of the "compromise agreement". If ever the plaintiff has

any legal right over Lot 8, Block 101 as one of the subject matters of the

"compromise agreement", it has to be a subject matter of another case but

certainly not in this case. 6

On December 5, 2000, the petitioner filed a complaint for Specific Performance against the

same respondent, Philippine Ports Authority, this time involving Lot 8, Block 101. This case

was docketed as Civil Case No. 00-99431. 7 The petitioner also sought the consolidation of this

case with the earlier Civil Case No. 95-73399. 8

On September 26, 2001, the RTC of Manila, Branch 42 dismissed the Civil Case No. 00-99431

complaint on the grounds of res judicata, forum shopping, and failure of the complaint to state a

cause of action. 9

The petitioner elevated the dismissal to the CA. On February 20, 2002, the petitioner received

the February 13, 2002 notice of the court requiring it to file its Brief within a period of 45 days

from receipt of the Order, which was to expire on April 6, 2002. Two days prior to the

expiration of this period, the petitioner filed a motion for a 45-day extension of time to file the

brief. No brief was filed within the extended period. On November 11, 2002, the CA dismissed

the appeal via a resolution whose pertinent portion reads:

For failure of the plaintiff-appellant, Bachrach Corporation to file the required

brief, the appeal is hereby considered DISMISSED pursuant to Section 1 (e),

Rule 50 of the 1997 Rules of Civil Procedure, as amended.

The Motion for Extension of Time to File Appellant's Brief is NOTED.

SO ORDERED. 10

On December 11, 2002, the petitioner filed a Motion for Reconsideration (with Motion to

Admit Attached Brief). 11 The CA denied the motion in its September 8, 2003 resolution,

paving the way for the filing of the present petition. HDacIT

THE PETITION

The petition asks the Court to liberally apply the rules of procedure, grant its appeal, and

thereby require the CA to entertain the appeal it dismissed. The petitioner raises the following

issues:

I.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT

GIVING A LIBERAL APPLICATION OF SECTION 1(E) RULE 50 OF

THE RULES OF COURT TO THE PRESENT CASE CONSISTENT WITH

SECTION 6, RULE 1 OF THE SAME RULES[;]

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT

REVERSING THE RULING OF THE TRIAL COURT THAT RES

JUDICATA BARS THE FILING OF CIVIL CASE NO. 00-99431[;]

III.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT

REVERSING THE RULING OF THE TRIAL COURT DISMISSING CIVIL

CASE NO. 00-99431.

The threshold issue the case presents is whether the CA erred in dismissing the petitioner's

appeal on the ground that no brief was timely filed.

OUR RULING

The petition is devoid of merit.

Rule 50, Section 1 of the Rules of Court enumerates the grounds for the dismissal of appeals;

paragraph (e) thereof provides that an appeal shall be dismissed upon —

[f]ailure of the appellant to serve and file the required number of copies of his

brief or memorandum within the time provided by these Rules. SHTEaA

In a long line of cases, this Court has held that the CA's authority to dismiss an appeal for

failure to file the appellant's brief is a matter of judicial discretion. 12 Thus, a dismissal based

on this ground is neither mandatory nor ministerial; the fundamentals of justice and fairness

must be observed, bearing in mind the background and web of circumstances surrounding the

case. 13

In the present case, the petitioner blames its former handling lawyer for failing to file the

appellant's brief on time. This lawyer was allegedly transferring to another law office at the

time the appellant's brief was due to be filed. 14 In his excitement to transfer to his new firm,

he forgot about the appeal and the scheduled deadline; he likewise forgot his responsibility to

endorse the case to another lawyer in the law office. 15

Under the circumstances of this case, we find the failure to file the appeal brief inexcusable;

thus, we uphold the CA's ruling.

The handling lawyer was undoubtedly at fault. The records show that even the filing of a

motion for reconsideration from the Regional Trial Court's ruling was late. In this case, he even

had the benefit of an extended period for the filing of the brief, but nevertheless failed to

comply with the requirements. If the present counsel were to be believed, the former counsel

did not even make a proper turnover of his cases — a basic matter for a lawyer and his law

office to attend to before a lawyer leaves.

But while fault can be attributed to the handling lawyer, we find that the law firm was no less at

fault. The departure of a lawyer actively handling cases for a law firm is a major concern; the

impact of a departure, in terms of the assignment of cases to new lawyers alone, is obvious.

Incidents of mishandled cases due to failures in the turnover of files are well-known within

professional circles. For some reason, the law firm merely attributes the failure to file the

appeal brief to the handling lawyer. This is not true and is a buck-passing that we cannot

accept. The law firm itself was grossly remiss in its duties to care for the interests of its client.

We note as a last point that the original 45-day period for the appellant to submit its brief

expired on April 6, 2002. Petitioner seasonably filed its motion for extension on April 4, 2002.

It was only on November 11, 2002, about seven (7) months later, that the CA dismissed the

appeal. Absolutely nothing appeared to have been done in the interim, not even in terms of

noting that no appeal brief had been filed. Thus, the petitioner simply took too long to rectify

its mistake; by the time that it acted, it was simply too late.

From these perspectives, the CA cannot in any way be said to have erred in dismissing the

appeal.

WHEREFORE, we DENY the petition for review and, consequently, AFFIRM the Court of

Appeals' Resolutions dated November 11, 2002 and September 8, 2003. IDaCcS

SO ORDERED.

AVITO YU, complainant, vs. ATTY. CESAR R.

TAJANLANGIT, respondent.

R E S O L U T I O N

TINGA, J p:

This is an administrative complaint for disbarment filed by complainant Avito Yu against

respondent Atty. Cesar R. Tajanlangit for violation of Rules 18.03 and 16.01 of the Code of

Professional Responsibility (the Code). 1

Complainant alleged that he had engaged the services of respondent as defense counsel in

Criminal Case No. 96-150393 that resulted in a judgment of conviction against him and a

sentence of thirty (30) years of imprisonment. 2 After the motion for reconsideration and/or

new trial was denied by the trial court, instead of filing an appeal, respondent filed a petition

for certiorari 3 under Rule 65 of the 1997 Rules of Civil Procedure imputing grave abuse of

discretion on the trial court's part in denying the motion. This petition was subsequently denied

by the Court of Appeals. Due to respondent's alleged error in the choice of remedy, the period

to appeal lapsed and complainant was made to suffer imprisonment resulting from his

conviction. In depriving complainant of his right to an appeal, respondent allegedly violated

Rule 18.03 4 of the Code. Moreover, complainant averred that respondent had violated Rule

16.01 5 of the Code for failing to return the bailbond to him in the amount P195,000.00 after

having withdrawn the same. 6 Further, complainant stated that respondent had failed to pay the

telephone bill he had incurred during his stay at complainant's house. 7 ISADET

Complainant prayed that respondent be disbarred and be ordered to pay him the amount of

P211,106.97 plus interest. 8

For his part, respondent clarified that his legal services were engaged only after the denial of

the motion for reconsideration and/or new trial and the supplement thereto. His legal services

were limited to filing the petition for certiorari. Complainant, at the time, had already been

convicted by the trial court. Respondent also explained that he had discussed with complainant

the merits of filing a petition for certiorari and that complainant gave his conformity to the

filing of the same. 9

Moreover, respondent averred that complainant had authorized and instructed him to withdraw

the cash bond in order to apply the amount as payment for legal fees and reimbursement for

expenses. With regard to the unpaid telephone bill, respondent alleged that he was not

presented a copy of the billing statement despite his previous requests. He also contended that

he had been allowed to use the telephone to facilitate coordination between him and

complainant as he was then residing in Bacolod City. 10

The Court referred the matter to the Integrated Bar of the Philippines (IBP) by Resolution of 16

July 2003. 11 AHDaET

In his Report and Recommendation dated 2 December 2004, Atty. Leland R. Villadolid, Jr.,

IBP Commissioner, made the following findings:

On the charge of violating Rule 18.03

. . . Considering that Respondent was only hired after the denial of the Motion

for Reconsideration and/or New Trial, Complainant is silent whether an appeal

was still available to him at that time. Complainant failed to state the material

dates when his first lawyer, Atty. Lacsamana received the Decision dated 6

February 1998, when she filed the Motion for Reconsideration and/or New

Trial, and when his second lawyer, Atty. Espiritu, received the Order dated 23

April 1999.

While all of the lawyers who protected Complainant's cause were of the view

that there was a need to present additional evidence and/or hold trial anew, it is

obvious that Complainant singled out Respondent and blamed him solely for

his conviction.

At any rate, Respondent exhaustively explained his legal basis for elevating

the Order dated 23 April 1999 to the Court of Appeals by filing a Petition

for Certiorari. Considering that the Order dated 23 April 1999, which denied

the Motion for Reconsideration and/or New Trial, Respondent's argument that

the said order is not the proper subject of appeal is tenable. This is supported

by Section 1(a), Rule 43 and Section 9, Rule 37 of the Rules of Court. For

another, a perusal of grounds Respondent raised in the Petition is acceptable

grounds that warrant a new trial. At least two of the grounds Respondent

raised were: the negligence of former counsel in failing to present evidence

and new discovered evidence. It is well-settled that these grounds usually

warrant the re-opening of evidence. Thus, it cannot be said that Respondent

acted negligently in advocating Complainant's cause. CIcEHS

On the charge of violating Rule 16.01

. . . In the absence of evidence controverting Respondent's claim that a verbal

agreement exists or an amount different from what was agreed upon, it is

believable that indeed, Complainant knew of the fee arrangement entered into

with the Respondent, through Ms. Javier, who acted in his behalf. It is also

indisputable that Complainant executed a Special Power of Attorney dated 23

March 1999 authorizing the Respondent to withdraw the cash bonds in several

criminal cases on his behalf. Thus, it was not all improper for Respondent to

withdraw the same.

While Respondent is entitled to be paid for the legal services he rendered and

expenses he incurred, it is still Respondent's obligation to render an accounting

of the money received.

Further, Respondent did not substantiate his claim that he had paid for or

tendered payment for the unpaid telephone bill. While he contends that he

previously asked for the billing statement, it was allegedly not shown to him.

However, there is no showing that from the time the instant disbarment

complaint was filed, which in itself constitutes the demand for its payment,

any payment (was) made by the Respondent. 12

Accordingly, the IBP Commissioner recommended that respondent be directed to: (1) render an

accounting of the money he had received and to itemize the nature of the legal services he had

rendered, inclusive of the expenses he had incurred in compliance with Rule 16.01 of the Code;

and (2) to pay the amount of the unpaid telephone bill. It was further recommended that

respondent be sternly warned that a similar offense in the future would be dealt with more

severely. 13 aSAHCE

On 12 March 2005, the IBP Board of Governors passed Resolution No. XVI-2005-83 adopting

and approving the Report and Recommendation of the IBP Commissioner. 14

The Court is in full accord with the findings and recommendation of the IBP.

Records show that respondent did not serve as complainant's lawyer at the inception of or

during the trial of Criminal Case No. 96-150393 which resulted to the conviction of the latter.

In fact, respondent was only engaged as counsel after the withdrawal of appearance of

complainant's lawyers and denial of the Motion for Reconsideration and/or New Trial and the

supplement thereto. At that time, complainant had already been incarcerated. Significantly,

complainant made no mention of the availability of the remedy of appeal at the time of

respondent's employment.

More importantly, the Court finds adequate respondent's justification for filing the petition for

certiorari instead of an appeal. Indeed, there is no showing that respondent was negligent in

handling the legal matter entrusted to him by complainant. cDCSTA

The Court also agrees with the IBP that it was not at all improper for respondent to have

withdrawn the cash bonds as there was evidence showing that complainant and respondent had

entered into a special fee arrangement. But, however justified respondent was in applying the

cash bonds to the payment of his services and reimbursement of the expenses he had incurred,

the Court agrees with the IBP that he is not excused from rendering an accounting of the same.

In Garcia v. Atty. Manuel, 15 the Court held that "(t)he highly fiduciary and confidential

relation of attorney and client requires that the lawyer should promptly account for all the funds

received from, or held by him for, the client." 16The fact that a lawyer has a lien for his

attorney's fees on the money in his hands collected for his client does not relieve him from the

obligation to make a prompt accounting. 17

Finally, the Court concurs with the IBP that while it is true that respondent was not presented a

copy of the unpaid telephone bill, the instant complaint itself constitutes the demand for its

payment. Considering that there is no manifestation to the effect that the same has been paid,

respondent should accordingly be required to settle it.

WHEREFORE, in view of the foregoing, respondent Atty. Cesar R. Tajanlangit is ordered to

render, within thirty (30) days from notice of this Resolution, an accounting of all monies he

received from complainant and to itemize the nature of the legal services he had rendered,

inclusive of the expenses he had incurred, in compliance with Rule 16.01 of the Code of

Professional Responsibility.

Respondent is further ADMONISHED that commission of the same or similar act in the future

will be dealt with more severely. SIacTE

SO ORDERED.

NILO HIPOS, SR. REPRESENTING DARRYL HIPOS, BENJAMIN CORSIÑO

REPRESENTING JAYCEE CORSIÑO, and ERLINDA VILLARUEL

REPRESENTING ARTHUR VILLARUEL, petitioners, vs. HONORABLE RTC

JUDGE TEODORO A. BAY, Presiding Judge, RTC, Hall of Justice, Quezon City,

Branch 86, respondent.

D E C I S I O N

CHICO-NAZARIO, J p:

This is a Petition for Mandamus under Rule 65 of the Rules of Court seeking a reversal of the

Order dated 2 October 2006 of respondent Judge Teodoro A. Bay of Branch 86 of the Regional

Trial Court (RTC) of Quezon City, which denied the Motion to Withdraw Informations of the

Office of the City Prosecutor of Quezon City. AcHEaS

The facts of the case are as follows.

On 15 December 2003, two Informations for the crime of rape and one Information for the

crime of acts of lasciviousness were filed against petitioners Darryl Hipos, Jaycee Corsiño,

Arthur Villaruel and two others before Branch 86 of the Regional Trial Court of Quezon City,

acting as a Family Court, presided by respondent Judge Bay. The cases were docketed as

Criminal Cases No. Q-03-123284, No. Q-03-123285 and No. Q-03-123286. The Informations

were signed by Assistant City Prosecutor Ronald C. Torralba.

On 23 February 2004, private complainants AAA 1 and BBB filed a Motion for

Reinvestigation asking Judge Bay to order the City Prosecutor of Quezon City to study if the

proper Informations had been filed against petitioners and their co-accused. Judge Bay granted

the Motion and ordered a reinvestigation of the cases.

On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the Case[s] before the

City Prosecutor. They claimed that there was no probable cause to hold them liable for the

crimes charged.

On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the reinvestigation

affirming the Informations filed against petitioners and their co-accused in Criminal Cases No.

Q-03-123284-86. The Resolution was signed by Assistant City Prosecutor Raniel S. Cruz and

approved by City Prosecutor Claro A. Arellano.

On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera, treating the Joint

Memorandum to Dismiss the Case as an appeal of the 10 August 2004 Resolution, reversed the

Resolution dated 10 August 2004, holding that there was lack of probable cause. On the same

date, the City Prosecutor filed a Motion to Withdraw Informations before Judge Bay.

On 2 October 2006, Judge Bay denied the Motion to Withdraw Informations in an Order of

even date.

Without moving for a reconsideration of the above assailed Order, petitioners filed the present

Petition for Mandamus, bringing forth this lone issue for our consideration:

CAN THE HON. SUPREME COURT COMPEL RESPONDENT JUDGE

BAY TO DISMISS THE CASE THROUGH A WRIT OF MANDAMUS BY

VIRTUE OF THE RESOLUTION OF THE OFFICE OF THE CITY

PROSECUTOR OF QUEZON CITY FINDING NO PROBABLE CAUSE

AGAINST THE ACCUSED AND SUBSEQUENTLY FILING A MOTION

TO WITHDRAW INFORMATION? 2 HDICSa

Mandamus is an extraordinary writ commanding a tribunal, corporation, board, officer or

person, immediately or at some other specified time, to do the act required to be done, when the

respondent unlawfully neglects the performance of an act which the law specifically enjoins as

a duty resulting from an office, trust, or station; or when the respondent excludes another from

the use and enjoyment of a right or office to which the latter is entitled, and there is no other

plain, speedy and adequate remedy in the ordinary course of law. 3

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a

ministerial duty, not a discretionary one;mandamus will not issue to control the exercise of

discretion by a public officer where the law imposes upon him the duty to exercise his

judgment in reference to any manner in which he is required to act, because it is his judgment

that is to be exercised and not that of the court. 4

In the case at bar, the act which petitioners pray that we compel the trial court to do is to grant

the Office of the City Prosecutor's Motion for Withdrawal of Informations against petitioners.

In effect, petitioners seek to curb Judge Bay's exercise of judicial discretion.

There is indeed an exception to the rule that matters involving judgment and discretion are

beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those

matters, when refused. 5 However, mandamus is never available to direct the exercise of

judgment or discretion in a particular way or the retraction or reversal of an action already

taken in the exercise of either. 6 In other words, while a judge refusing to act on a Motion to

Withdraw Informations can be compelled by mandamus to act on the same, hecannot be

compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at bar, Judge

Bay did not refuse to act on the Motion to Withdraw Informations; he had already acted on it

by denying the same. Accordingly, mandamus is not available anymore. If petitioners believed

that Judge Bay committed grave abuse of discretion in the issuance of such Order denying the

Motion to Withdraw Informations, the proper remedy of petitioners should have been to file a

Petition for Certiorari against the assailed Order of Judge Bay.

Petitioners counter that the above conclusion, which has been argued by the Solicitor General,

is contrary to a ruling of this Court, which allegedly states that the proper remedy in such cases

is a Petition for Mandamus and not Certiorari. Petitioners cite the following excerpt from our

ruling in Sanchez v. Demetriou: 7 TacADE

The appreciation of the evidence involves the use of discretion on the part of

the prosecutor, and we do not find in the case at bar a clear showing by the

petitioner of a grave abuse of such discretion.

The decision of the prosecutor may be reversed or modified by the Secretary

of Justice or in special cases by the President of the Philippines. But even this

Court cannot order the prosecution of a person against whom the prosecutor

does not find sufficient evidence to support at least a prima facie case. The

courts try and absolve or convict the accused but as a rule have no part in the

initial decision to prosecute him.

The possible exception is where there is an unmistakable showing of grave

abuse of discretion that will justify a judicial intrusion into the precincts of the

executive. But in such a case the proper remedy to call for such exception is a

petition for mandamus, not certiorari or prohibition. 8 (Emphases supplied.)

Petitioners have taken the above passage way out of its context. In the case of Sanchez,

Calauan Mayor Antonio Sanchez brought a Petition forCertiorari before this Court, challenging

the order of the respondent Judge therein denying his motion to quash the Information filed

against him and six other persons for alleged rape and homicide. One of the arguments of

Mayor Sanchez was that there was discrimination against him because of the non-inclusion of

two other persons in the Information. We held that even this Court cannot order the prosecution

of a person against whom the prosecutor does not find sufficient evidence to support at least

a prima facie case. However, if there was an unmistakable showing of grave abuse of

discretion on the part of the prosecutors in that case, Mayor Sanchez should have filed

a Petition for Mandamus to compel the filing of charges against said two other persons.

In the case at bar, the Petition for Mandamus is directed not against the prosecution, but against

the trial court, seeking to compel the trial court to grant the Motion to Withdraw Informations

by the City Prosecutor's Office. The prosecution has already filed a case against petitioners.

Recently, in Santos v. Orda, Jr., 9 we reiterated the doctrine we established in the leading case

of Crespo v. Mogul, 10 that once a criminal complaint or an information is filed in court, any

disposition or dismissal of the case or acquittal or conviction of the accused rests within the

jurisdiction, competence, and discretion of the trial court. Thus, we held:

In Crespo v. Mogul, the Court held that once a criminal complaint or

information is filed in court, any disposition of the case or dismissal or

acquittal or conviction of the accused rests within the exclusive jurisdiction,

competence, and discretion of the trial court. The trial court is the best and

sole judge on what to do with the case before it. A motion to dismiss the case

filed by the public prosecutor should be addressed to the court who has the

option to grant or deny the same. Contrary to the contention of the petitioner,

the rule applies to a motion to withdraw the Information or to dismiss the case

even before or after arraignment of the accused. The only qualification is that

the action of the court must not impair the substantial rights of the accused or

the right of the People or the private complainant to due process of law. When

the trial court grants a motion of the public prosecutor to dismiss the case, or

to quash the Information, or to withdraw the Information in compliance with

the directive of the Secretary of Justice, or to deny the said motion, it does so

not out of subservience to or defiance of the directive of the Secretary of

Justice but in sound exercise of its judicial prerogative. CHcESa

Petitioners also claim that since Judge Bay granted a Motion for Reinvestigation, he should

have "deferred to the Resolution of Asst. City Prosecutor De Vera withdrawing the

case". 11 Petitioners cite the following portion of our Decision in People v. Montesa, Jr.: 12

In the instant case, the respondent Judge granted the motion for reinvestigation

and directed the Office of the Provincial Prosecutor of Bulacan to conduct the

reinvestigation. The former was, therefore, deemed to have deferred to the

authority of the prosecution arm of the Government to consider the so-called

new relevant and material evidence and determine whether the information it

had filed should stand.

Like what was done to our ruling in Sanchez, petitioners took specific statements from our

Decision, carefully cutting off the portions which would expose the real import of our

pronouncements. The Petition for Certiorari in Montesa, Jr. was directed against a judge who,

after granting the Petition for Reinvestigation filed by the accused, proceeded nonetheless to

arraign the accused; and, shortly thereafter, the judge decided to dismiss the case on the basis of

a Resolution of the Assistant Provincial Prosecutor recommending the dismissal of the case.

The dismissal of the case in Montesa, Jr. was done despite the disapproval of the Assistant

Provincial Prosecutor's Resolution by the Provincial Prosecutor (annotated in the same

Resolution), and despite the fact that the reinvestigation the latter ordered was still ongoing,

since the Resolution of the Assistant Provincial Prosecutor had not yet attained finality. We

held that the judge should have waited for the conclusion of the Petition for Reinvestigation he

ordered, before acting on whether or not the case should be dismissed for lack of probable

cause, and before proceeding with the arraignment. Thus, the continuation of the above

paragraph of our Decision in Montesa, Jr. reads:

Having done so, it behooved the respondent Judge to wait for a final resolution

of the incident. In Marcelo vs. Court of Appeals, this Court ruled:

Accordingly, we rule that the trial court in a criminal case which takes

cognizance of an accused's motion for review of the resolution of the

investigating prosecutor or for reinvestigation and defers the

arraignment until resolution of the said motion must act on the

resolution reversing the investigating prosecutor's finding or on a

motion to dismiss based thereon only upon proof that such resolution is

already final in that no appeal was taken thereon to the Department of

Justice.

The resolution of Assistant Provincial Prosecutor Rutor recommending the

dismissal of the case never became final, for it was not approved by the

Provincial Prosecutor. On the contrary, the latter disapproved it. As a

consequence, the final resolution with respect to the reinvestigation is that of

the Provincial Prosecutor, for under Section 4, Rule 112 of the Rules of Court,

no complaint or information may be filed or dismissed by an investigating

fiscal without the prior written authority or approval of the provincial or city

fiscal or chief state prosecutor. Also, under Section l(d) of R.A. No. 5180, as

amended by P.D. No. 77 and P.D. No. 911.

As can be clearly seen, the statement quoted by petitioners from Montesa, Jr. is not meant to

establish a doctrine that the judge should just follow the determination by the prosecutor of

whether or not there is probable cause. On the contrary, Montesa, Jr. states:

The rule is settled that once a criminal complaint or information is filed in

court, any disposition thereof, such as its dismissal or the conviction or

acquittal of the accused, rests in the sound discretion of the court. While the

prosecutor retains the discretion and control of the prosecution of the case, he

cannot impose his opinion on the court. The court is the best and sole judge on

what to do with the case. Accordingly, a motion to dismiss the case filed by

the prosecutor before or after the arraignment, or after a reinvestigation, or

upon instructions of the Secretary of Justice who reviewed the records upon

reinvestigation, should be addressed to the discretion of the court. The action

of the court must not, however, impair the substantial rights of the accused or

the right of the People to due process of law. 15

In a seemingly desperate attempt on the part of petitioners' counsel, he tries to convince us that

a judge is allowed to deny a Motion to Withdraw Informations from the prosecution only when

there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal;

and that, where there is no grave abuse of discretion on the part of the prosecutors, the denial of

the Motion to Withdraw Informations is void. Petitioners' counsel states in the Memorandum:

6.10.Furthermore, the ORDER dated October 2, 2006 of the Respondent Judge

BAY consisting of 9 pages which was attached to the URGENT PETITION

did not point out any iota of grave abuse of discretion committed by Asst. City

Prosecutor De Vera in issuing his Resolution in favor of the sons of the

Petitioners. Hence, the ORDER issued by RJBAY is NULL and VOID in view

of the recent ruling of the Hon. Supreme Court in Ledesma vs. Court of

Appeals, G.R. No. 113216, September 5, 1997, 86 SCAD 695, 278 SCRA 657

which states that:

"In the absence of a finding of grave abuse of discretion, the court's

bare denial of a motion to withdraw information pursuant to the

Secretary's resolution is void." (Underscoring ours).

6.11.It is therefore respectfully submitted that the Hon. Supreme Court

disregard the argument of the OSG because of its falsity. 16

This statement of petitioners' counsel is utterly misleading. There is no such statement in our

Decision in Ledesma. 17 The excerpt fromLedesma, which appears to have a resemblance to

the statement allegedly quoted from said case, provides: CTHaSD

No Grave Abuse of Discretion in the Resolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that

the issue of the correctness of the justice secretary's resolution has been amply

threshed out in petitioner's letter, the information, the resolution of the

secretary of justice, the motion to dismiss, and even the exhaustive discussion

in the motion for reconsideration — all of which were submitted to the court

— the trial judge committed grave abuse of discretion when it denied the

motion to withdraw the information, based solely on his bare and ambiguous

reliance on Crespo. The trial court's order is inconsistent with our repetitive

calls for an independent and competent assessment of the issue(s) presented in

the motion to dismiss. The trial judge was tasked to evaluate the secretary's

recommendation finding the absence of probable cause to hold petitioner

criminally liable for libel. He failed to do so. He merely ruled to proceed with

the trial without stating his reasons for disregarding the secretary's

recommendation. 18(Emphasis supplied.)

It very much appears that the counsel of petitioners is purposely misleading this Court, in

violation of Rule 10.02 of the Code of Professional Responsibility, which provides:

Rule 10.02 — A lawyer shall not knowingly misquote or misrepresent the

contents of a paper, the language or the argument of opposing counsel, or the

text of a decision or authority, or knowingly cite as law a provision already

rendered inoperative by repel or amendment, or assert as a fact that which has

not been proved.

Counsel's use of block quotation and quotation marks signifies that he intends to make it

appear that the passages are the exact words of the Court. Furthermore, putting the words

"Underscoring ours" after the text implies that, except for the underscoring, the text is a

faithful reproduction of the original. Accordingly, we are ordering Atty. Procopio S.

Beltran, Jr. to show cause why he should not be disciplined as a member of the Bar.

To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion to Withdraw

Information from the prosecution only when there is grave abuse of discretion on the part of the

prosecutors moving for such withdrawal. Neither did we rule therein that where there is no

grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw

Information is void. What we held therein is that a trial judge commits grave abuse of

discretion if he denies a Motion to Withdraw Information without an independent and complete

assessment of the issues presented in such Motion. Thus, the opening paragraph

of Ledesma states: aESICD

When confronted with a motion to withdraw an information on the ground of

lack of probable cause based on a resolution of the secretary of justice, the

bounden duty of the trial court is to make an independent assessment of the

merits of such motion. Having acquired jurisdiction over the case, the trial

court is not bound by such resolution but is required to evaluate it before

proceeding further with the trial. While the secretary's ruling is persuasive, it is

not binding on courts. A trial court, however, commits reversible error or even

grave abuse of discretion if it refuses/neglects to evaluate such

recommendation and simply insists on proceeding with the trial on the mere

pretext of having already acquired jurisdiction over the criminal

action. 19 (Emphases supplied.)

Petitioners also try to capitalize on the fact that the dispositive portion of the assailed Order

apparently states that there was no probable cause against petitioners:

WHEREFORE, finding no probable cause against the herein accused for the

crimes of rapes and acts of lasciviousness, the motion to withdraw

informations is DENIED.

Let the case be set for arraignment and pre-trial on October 24, 2006 at 8:30

o'clock in the morning. 20 (Underscoring ours.)

Thus, petitioners claim that since even the respondent judge himself found no probable cause

against them, the Motion to Withdraw Informations by the Office of the City Prosecutor should

be granted. 21

Even a cursory reading of the assailed Order, however, clearly shows that the insertion of the

word "no" in the above dispositive portion was a mere clerical error. The assailed Order states

in full:

After a careful study of the sworn statements of the complainants and the

resolution dated March 3, 2006 of 2nd Assistant City Prosecutor Lamberto C.

de Vera, the Court finds that there was probable cause against the herein

accused. The actuations of the complainants after the alleged rapes and acts of

lasciviousness cannot be the basis of dismissal or withdrawal of the herein

cases. Failure to shout or offer tenatious resistance did not make voluntary the

complainants' submission to the criminal acts of the accused (People v.

Velasquez, 377 SCRA 214, 2002). The complainants' affidavits indicate that

the accused helped one another in committing the acts complained of.

Considering that the attackers were not strangers but their trusted classmates

who enticed them to go to the house where they were molested, the

complainants cannot be expected to react forcefully or violently in protecting

themselves from the unexpected turn of events. Considering also that both

complainants were fifteen (15) years of age and considered children under our

laws, the ruling of the Supreme Court in People v. Malones, G.R. Nos.

124388-90, March 11, 2004 becomes very relevant. The Supreme Court ruled

as follows: EHCcIT

Rape victims, especially child victims, should not be expected to act

the way mature individuals would when placed in such a situation. It is

not proper to judge the actions of children who have undergone

traumatic experience by the norms of behavior expected from adults

under similar circumstances. The range of emotions shown by rape

victim is yet to be captured even by calculus. It is, thus, unrealistic to

expect uniform reactions from rape victims (People v. Malones, G.R.

Nos. 124388-90, March 11, 2004).

The Court finds no need to discuss in detail the alleged actuations of the

complainants after the alleged rapes and acts of lasciviousness. The alleged

actuations are evidentiary in nature and should be evaluated after full blown

trial on the merits. This is necessary to avoid a suspicion of prejudgment

against the accused. 22

As can be seen, the body of the assailed Order not only plainly stated that the court found

probable cause against the petitioners, but likewise provided an adequate discussion of the

reasons for such finding. Indeed, the general rule is that where there is a conflict between the

dispositive portion or the fallo and the body of the decision, the fallo controls. However, where

the inevitable conclusion from the body of the decision is so clear as to show that there was a

mistake in the dispositive portion, the body of the decision will prevail. 23

In sum, petitioners' resort to a Petition for Mandamus to compel the trial judge to grant their

Motion to Withdraw Informations is improper. While mandamus is available to compel action

on matters involving judgment and discretion when refused, it is never available to direct the

exercise of judgment or discretion in a particular way or the retraction or reversal of an action

already taken in the exercise of either. 24 The trial court, when confronted with a Motion to

Withdraw an Information on the ground of lack of probable cause, is not bound by the

resolution of the prosecuting arm of the government, but is required to make an independent

assessment of the merits of such motion, a requirement satisfied by the respondent judge in the

case at bar. 25

Finally, if only to appease petitioners who came to this Court seeking a review of the finding of

probable cause by the trial court, we nevertheless carefully reviewed the records of the case.

After going through the same, we find that we are in agreement with the trial court that there is

indeed probable cause against the petitioners sufficient to hold them for trial. We decided to

omit a detailed discussion of the merits of the case, as we are not unmindful of the undue

influence that might result should this Court do so, even if such discussion is only intended to

focus on the finding of probable cause.

WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let the records of this case

be remanded to the Regional Trial Court of Quezon City for the resumption of the proceedings

therein. The Regional Trial Court is directed to act on the case with dispatch. STIcEA

Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he should not be

disciplined as a member of the Bar for his disquieting conduct as herein discussed.

SO ORDERED.

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON.

MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon

City, respondents.

D E C I S I O N

PANGANIBAN, J p:

When confronted with a motion to withdraw an information on the ground of lack of probable

cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to

make an independent assessment of the merits of such motion. Having acquired jurisdiction

over the case, the trial court is not bound by such resolution but is required to evaluate it before

proceeding further with the trial. While the secretary's ruling is persuasive, it is not binding on

courts. A trial court, however, commits reversible error or even grave abuse of discretion if it

refuses/neglects to evaluate such recommendation and simply insists on proceeding with the

trial on the mere pretext of having already acquired jurisdiction over the criminal action. LLpr

This principle is explained in this Decision resolving a petition for review on certiorari of the

Decision 1 of the Court of Appeals, 2 promulgated on September 14, 1993 in CA-G.R. SP No.

30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying

the prosecution's withdrawal of a criminal information against petitioner.

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr.

Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutor's Office, docketed

as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint.

Finding "sufficient legal and factual basis," the Quezon City Prosecutor's Office filed on July 6,

1992 an Information for libel against petitioner with the Regional Trial Court of Quezon City,

Branch 104. 3 The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: 4

"That on or about the 27th day of June 1991, in Quezon City, Metro Manila,

Philippines, the said accused, acting with malice, did, then and there, wilfully,

unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral,

Director of Philippine Heart Center, East Avenue, this city, and furnished the

same to other officers of the said hospital, said letter containing slanderous and

defamatory remarks against DR. JUAN F. TORRES, JR., which states in part,

to wit:

'27 June 1991

Dr. Esperanza I. Cabral

Director

Subject:Return of all professional fees due Dr. Rhodora M.

Ledesma, Nuclear Medicine

Specialist/Consultant, Philippine Heart Center,

from January 31, 1989 to January 31, 1991.

Respondents:Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine

Section

Dr. Orestes P. Monzon,

Staff Consultant

Dear Dr. Cabral,

This is to demand the return of all professional fees due me as a

consultant in Nuclear Medicine, this Center, since January 31, 1989

until my resignation effective January 31, 1991, amounting to at least

P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine

Section will show that from January 1989 to January 1991, a total of

2,308 patients were seen. Of these, I had officially supervised,

processed, and interpreted approximately a total of 1,551 cases as

against approximately 684 and 73 cases done by Dr. Monzon and Dr.

Torres respectively.

Until my resignation I had received a monthly share of professional

fees averaging P1,116.90/month supposedly representing 20% of the

total monthly professional fees. The rest were divided equally between

Dr. Monzon and Dr. Torres. There was never any agreement between

us three consultants that this should be the arrangement and I am

certain that this was not with your approval. The burden of unfairness

would have been lesser if there was an equal distribution of labor and

the schedule of duties were strictly followed. As it was, the schedule of

duties submitted monthly to the office of the Asst. Director for Medical

Services was simply a dummy to comply with administrative

requirements rather than a guideline for strict compliance. Both

consultants have complete daily time records even if they did not come

regularly. Dr. Torres came for an hour every week, Dr. Monzon came

sporadically during the week while I was left with everything from

training the residents and supervising the Techs to processing and

interpreting the results on a regular basis. I had a part time appointment

just like Dr. Monzon and Dr. Torres.

In the interest of fairness and to set a precedent for the protection of

future PHC Nuclear Medicine Alumni I am calling your attention to

the unfair and inhuman conditions I went through as a Consultant in

that Section. I trust that your sense of professionalism will put a stop to

this corruption.

I suggest that a committee be formed to make an audit of the

distribution of professional fees in this Section. At this point let me

stress that since professional fees vary according to the type of

procedure done and since there was no equity of labor between us I am

not settling for an equal percentage share. I demand that I be

indemnified of all professional fees due me on a case to case basis.

Let me make clear my intention of pursuing this matter legally should

there be no favorable action in my behalf. Let me state at this point,

that the actions of Dr. Torres and Dr. Monzon are both unprofessional

and unbecoming and are clearly violating the code of ethics of the

medical profession and the Philippine Civil Service Rules and

Regulations related to graft and corruption.

Thank you.'

and other words of similar import, when in truth and in fact, as the accused

very well knew, the same are entirely false and untrue but were publicly made

for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public

ridicule, thereby casting dishonor, discredit and contempt upon the person of

the said offended party, to his damage and prejudice."

A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by

petitioner before the Department of Justice pursuant toP.D. No. 77 as amended by P.D. No.

911.

The Department of Justice gave due course to the petition and directed the Quezon City

prosecutor to move for deferment of further proceedings and to elevate the entire records of the

case. 5 Accordingly, a "Motion to Defer Arraignment" dated September 7, 1992 was filed by

Prosecutor Tirso M. Gavero before the court a quo. 6 On September 9, 1992, the trial court

granted the motion and deferred petitioner's arraignment until the final termination of the

petition for review. 7

Without the consent or approval of the trial prosecutor, private complainant, through counsel,

filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for

Arraignment/Trial. 8

On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September

9, 1992 and scheduling petitioner's arraignment on January 18, 1993 at two o'clock in the

afternoon. 9

In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the

Quezon City investigating prosecutor. Pertinent portions of Drilon's ruling read: 10

"From the circumstances obtaining, the subject letter was written to bring to

the attention of the Director of the Philippine Heart Center for Asia and other

responsible authorities the unjust and unfair treatment that Dr. Ledesma was

getting from complainants. Since complainants and respondent are

government employees and the subject letter is a complaint to higher

authorities of the PHCA on a subject matter in which respondent has an

interest and in reference to which she has a duty to question the same is

definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs.

Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil.

922, ruled that 'A communication made in good faith upon any subject matter

in which the party making the communication has an interest or concerning

which he has a duty is privileged. . . although it contains incriminatory or

derogatory matter which, without the privilege, would be libelous and

actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct

evidence of respondent's righteous disposition of following the rule of law and

is a clear indication that her purpose was to seek relief from the proper higher

authority who is the Director of PHCA.

The same interpretation should be accorded the civil and administrative

complaints which respondent filed against complainants. They are mere

manifestations of her earnest desire to pursue proper relief for the alleged

injustice she got from complainants. If she was motivated by malice and ill-

will in sending the subject communication to the Director of the PHCA, she

would not have sent the second letter and filed the administrative and civil

cases against complainants.

Moreover, it is unbelievable that it took complainants one year to realize that

the questioned letter subjected them to public and malicious imputation of a

vice or omission. It is beyond the ordinary course of human conduct for

complainants to start feeling the effects of the alleged libelous letter — that of

experiencing sleepless nights, wounded feelings, serious anxiety, moral shock

and besmirched reputation — one year after they read the communication in

question.

The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to

the instant case is unfounded. In the first place, the instant cases are not being

reinvestigated. It is the resolutions of the investigating prosecutor that are

under review. Further, the record shows that the court has issued an order

suspending the proceedings pending the resolutions of the petitions for review

by this Office. In the issuance of its order, the court recognizes that the

Secretary of Justice has the power and authority to review the resolutions of

prosecutors who are under his control and supervision.

In view of the foregoing, the appealed resolutions are hereby reversed. You

are directed to withdraw the Informations which you filed in Court. Inform

this Office of the action taken within ten (10) days from receipt hereof.'

In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a

Motion to Withdraw Information dated February 17, 1993, 11 attaching thereto the resolution

of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as

follows:12

'The motion of the trial prosecutor to withdraw the information in the above-

entitled case is denied. Instead, the trial prosecutor of this court is hereby

directed to prosecute the case following the guidelines and doctrine laid down

by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462.'

Petitioner's motion for reconsideration 13 was denied by the trial judge in the Order dated

March 5, 1993, as follows: 14

"Finding no cogent reason to justify the reconsideration of the ruling of this

Court dated February 22, 1993, the Motion for Reconsideration dated March

1, 1993 filed by the accused through counsel is hereby denied."

Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a

Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for

proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129. 15

Respondent Court dismissed the petition "for lack of merit," holding that it had no jurisdiction

to overturn the doctrine laid down in Crespo vs.Mogul — once a complaint or information has

been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the

accused, rests on the sound discretion of the trial court. 16

Hence, this recourse to this Court.

The Issues

For unexplained reasons, petitioner failed to make an assignment of errors against the appellate

court. Her counsel merely repeated the alleged errors of the trial court: 17

"I.The Orders, dated February 22, 1993 and March 5, 1993, of respondent

Judge Asuncion relied solely on the Crespo vs. Mogul' (151 SCRA 462)

decision. It is respectfully submitted that said case is not applicable because:

1.It infringes on the constitutional separation of powers between the executive

and judicial branches of the government;

2.It constitutes or it may lead to misuse or misapplication of 'judicial power' as

defined in the Constitution;

3.It goes against the constitutional proscription that rules of procedure should

not diminish substantive rights;

4.It goes against the principle of non-delegation of powers;

5.It sets aside or disregards substantive and procedural rules;

6.It deprives a person of his constitutional right to procedural due process;

7.Its application may constitute or lead to denial of equal protection of laws;

8.It deprives the secretary of justice or the president of the power to control or

review the acts of a subordinate official;

9.It will lead to, encourage, abet or promote abuse or even corruption among

the ranks of investigating fiscals;

10.It does not subserve the purposes of a preliminary investigation because —

(10.a)It subjects a person to the burdens of an unnecessary trial, specially in

cases where the investigating fiscal recommends no bail for the accused;

(10.b)It subjects the government, both the executive and the judiciary, to

unnecessary time and expenses attendant to an unnecessary trial;

(10.c)It contributes to the clogging of judicial dockets; and

11.It has no statutory or procedural basis or precedent.

II.On the assumption that 'Crespo vs. Mogul' is applicable, it is submitted that

—

1.Respondent Judge Asuncion committed grave abuse of discretion,

amounting to lack of jurisdiction when he denied the Motion to Withdraw

Information since he had already deferred to, if not recognized, the authority

of the Secretary of Justice; and

2.The facts in 'Crespo vs. Mogul' are different from the instant case. Hence,

respondent Judge Asuncion committed grave abuse of discretion amounting to

lack of jurisdiction when he relied solely on said case in denying the Motion to

Withdraw Information."

In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in

affirming the trial court's denial of the prosecution's Motion to Withdraw Information?

The Court's Ruling

The petition is impressed with merit. We answer the above question in the affirmative.

Preliminary Matter

Before discussing the substance of this case, the Court will preliminarily address a procedural

matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2

of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided:

"SEC 2.Contents of petition. — The petition shall contain a concise statement

of . . . the assignment of errors made in the court below . . ."

A petition for review on certiorari under Rule 45 requires a concise statement of the errors

committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the

petition could have been dismissed by this Court motu proprio, considering that under Section

4 of the same Rule, "review is not a matter of right but of sound discretion."

We take this occasion to stress the need for precision and clarity in the assignment of errors.

Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusion

perpetua or life imprisonment is imposed and where the whole case is opened for review.

Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the

Court, such that an erroneous specification of the issues may cause the dismissal of the petition.

We stressed this in Circular No. 2-90, entitled "Guidelines to be Observed in Appeals to the

Court of Appeals and to the Supreme Court," as follows: prLL

"4.Erroneous Appeals. . .

e)Duty of counsel. — It is therefore incumbent upon every attorney who

would seek review of a judgment or order promulgated against his client to

make sure of the nature of the errors he proposes to assign, whether these be of

fact or of law; then upon such basis to ascertain carefully which Court has

appellate jurisdiction; and finally, to follow scrupulously the requisites for

appeal prescribed by law, ever aware that any error or imprecision in

compliance may well be fatal to his client's cause.

FOR STRICT COMPLIANCE."

Be that as it may, the Court — noting the importance of the substantial matters raised —

decided to overlook petitioner's lapse and granted due course to the petition per Resolution

dated July 15, 1996, with a warning that henceforth petitions which fail to specify an

assignment of errors of the proper lower court may be denied due course motu proprio by this

Court.

Determination of Probable Cause

Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially recognized

as an executive function and is made by the prosecutor. The primary objective of a preliminary

investigation is to free a respondent from the inconvenience, expense, ignominy and stress of

defending himself/herself in the course of a formal trial, until the reasonable probability of his

or her guilt has been passed upon in a more or less summary proceeding by a competent officer

designated by law for that purpose. Secondarily, such summary proceeding also protects the

state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in

holding trials arising from false, frivolous or groundless charges. 18

Such investigation is not a part of the trial. A full and exhaustive presentation of the parties'

evidence is not required, but only such as may engender as well-grounded belief that an offense

has been committed and that the accused is probably guilty thereof. 19 By reason of the

abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is

not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.

In declaring this function to be lodged in the prosecutor, the Court distinguished the

determination of probable cause for the issuance of a warrant of arrest or a search warrant from

a preliminary investigation proper, in this wise: 20

". . . Judges and prosecutors alike should distinguish the preliminary inquiry

which determines probable cause for the issuance of a warrant of arrest from a

preliminary investigation proper which ascertains whether the offender should

be held for trial or released. . . . The determination of probable cause for the

warrant of arrest is made by the Judge. The preliminary investigation proper

— whether . . . there is reasonable ground to believe that the accused is guilty

of the offense charged and, therefore, whether . . . he should be subjected to

the expense, rigors and embarrassment of trial — is the function of the

prosecutor.

We reiterate that preliminary investigation should be distinguished as to

whether it is an investigation for the determination of a sufficient ground for

the filing of the information or it is an investigation for the determination of a

probable cause for the issuance of a warrant of arrest. The first kind of

preliminary investigation is executive in nature. It is part of the prosecutor's

job. The second kind of preliminary investigation which is more properly

called preliminary examination is judicial in nature and is lodged with the

judge."

Sound policy supports this distinction. Otherwise, judges would be unduly laden with the

preliminary examination and investigation of criminal complaints instead of concentrating on

hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice

Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the

existence of probable cause properly pertains to the public prosecutor in the "established

scheme of things," and that the proceedings therein are "essentially preliminary, prefatory and

cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the

persons charged with a felony or a crime." 21

In Crespo vs. Mogul, 22 the Court emphasized the cardinal principle that the public prosecutor

controls and directs the prosecution of criminal offenses thus:

"It is a cardinal principle that all criminal actions either commenced by

complaint or by information shall be prosecuted under the direction and

control of the fiscal. The institution of a criminal action depends upon the

sound discretion of the fiscal. He may or may not file the complaint or

information, follow or not follow that presented by the offended party,

according to whether the evidence in his opinion, is sufficient or not to

establish the guilt of the accused beyond reasonable doubt. The reason for

placing the criminal prosecution under the direction and control of the fiscal is

to prevent malicious or unfounded prosecution by private persons. It cannot be

controlled by the complainant. Prosecuting officers under the power vested in

them by law, not only have the authority but also the duty of prosecuting

persons who, according to the evidence received from the complainant, are

shown to be guilty of a crime committed within the jurisdiction of their office.

They have equally the legal duty not to prosecute when after an investigation

they become convinced that the evidence adduced is not sufficient to establish

a prima facie case."

In the same case, the Court added that where there is a clash of views between a judge who did

not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should

normally prevail: 23

". . . The Courts cannot interfere with the fiscal's discretion and control of the

criminal prosecution. It is not prudent or even permissible for a Court to

compel the fiscal to prosecute a proceeding originally initiated by him on an

information, if he finds that the evidence relied upon by him is insufficient for

conviction. Neither has the Court any power to order the fiscal to prosecute or

file an information within a certain period of time since this would interfere

with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal

who asks for the dismissal of the case for insufficiency of evidence has

authority to do so and Courts that grant the same commit no error. The fiscal

may re-investigate a case and subsequently move for the dismissal should the

re-investigation show either that the defendant is innocent or that his guilt may

not be established beyond reasonable doubt. In a clash of views between the

judge who did not investigate and the fiscal who did, or between the fiscal and

the offended party or the defendant, those of the fiscal's should normally

prevail. . . ."

Appeal as an Exercise of the Justice

Secretary's Power of Control Over Prosecutors

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who,

under the Revised Administrative Code, exercises the power of direct control and supervision

over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.

Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the

Code gives the secretary of justice supervision and control over the Office of the Chief

Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of

supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the

Code:

"(1)Supervision and Control. — Supervision and control shall include

authority to act directly whenever a specific function is entrusted by law or

regulation to a subordinate; direct the performance of duty; restrain the

commission of acts; review, approve, reverse or modify acts and decisions of

subordinate officials or units; . . .

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act

4007 which read:

"Section 3.. . .

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior

State Prosecutors, and the State Prosecutors shall . . . perform such other duties

as may be assigned to them by the Secretary of Justice in the interest of public

service."

"Section 37.The provisions of the existing law to the contrary notwithstanding,

whenever a specific power, authority, duty, function, or activity is entrusted to

a chief of bureau, office, division or service, the same shall be understood as

also conferred upon the proper Department Head who shall have authority to

act directly in pursuance thereof, or to review, modify, or revoke any decision

or action of said chief of bureau office, division or service."

"Supervision" and "control" of a department head over his subordinates have been defined in

administrative law as follows: 24

"In administrative law supervision means overseeing or the power or authority

of an officer to see that subordinate officers perform their duties. If the latter

fail or neglect to fulfill them, the former may take such action or step as

prescribed by law to make them perform such duties. Control, on the other

hand, means the power of an officer to alter or modify or nullify or set aside

what a subordinate officer had done in the performance of his duties and to

substitute the judgment of the former for that of the latter."

Review as an act of supervision and control by the justice secretary over the fiscals and

prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds

that mistakes, abuses or negligence committed in the initial steps of an administrative activity

or by an administrative agency should be corrected by higher administrative authorities, and not

directly by courts. As a rule, only after administrative remedies are exhausted may judicial

recourse be allowed.

Appeal to the Secretary of Justice Is Not

Foreclosed by the Ruling in Crespo

In Marcelo vs. Court of Appeals, 25 the Court clarified that Crespo 26 did not foreclose the

power or authority of the secretary of justice to review resolutions of his subordinates in

criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or

prosecutor in the preliminary investigation is subject to the approval of the provincial or city

fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice.

The justice secretary's power of review may still be availed of despite the filing of an

information in court. In his discretion, the secretary may affirm, modify or reverse resolutions

of his subordinates pursuant to Republic Act No. 5180, as amended, 27 specifically in Section 1

(d):

"(d). . . Provided, finally, That where the resolution of the Provincial or City

Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary

of Justice, the latter may, where he finds that no prima facie case exists,

authorize and direct the investigating fiscal concerned or any other fiscal or

state prosecutor to cause or move for the dismissal of the case, or, where he

finds a prima faciecase, to cause the filing of an information in court against

the respondent, based on the same sworn statements or evidence submitted

without the necessity of conducting another preliminary investigation."

Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990

governing appeals in preliminary investigation. Appeals under Section 2 are limited to

resolutions dismissing a criminal complaint. However, Section 4 provides an exception:

appeals from resolutions finding probable cause upon a showing of manifest error or grave

abuse of discretion are allowed, provided the accused has not been arraigned. In the present

case, petitioner's appeal to the secretary of justice was given due course on August 26, 1992

pursuant to this Circular.

On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the

scope of appealable cases remained unchanged:

"SEC. 1.What May Be Appealed. — Only resolutions of the Chief State

Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing

a criminal complaint may be the subject of an appeal to the Secretary of

Justice except as otherwise provided in Section 4 hereof.

Appeals from the resolutions of provincial/city prosecutors where the penalty

prescribed for the offense charged does not exceed prision correccional,

regardless of the imposable fine, shall be made to the Regional State

Prosecutors who shall resolve the appeals with finality pursuant to Department

Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated

February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated

February 2, 1993. Such appeals shall also be governed by these rules.

SEC. 4.Non-Appealable Cases; Exceptions. — No appeal may be taken from a

resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial

or City Prosecutor finding probable cause except upon showing of manifest

error or grave abuse of discretion. Notwithstanding the showing of manifest

error or grave abuse of discretion, no appeal shall be entertained where the

appellant had already been arraigned. If the appellant (is) arraigned during the

pendency of the appeal, . . . appeal shall be dismissedmotu proprio by the

Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause,

however, shall not hold the filing of the information in court."

Apart from the foregoing statutory and administrative issuances, the power of review of the

secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court:

"SEC. 4.Duty of investigating fiscal. — . . .

If upon petition by a proper party, the Secretary of Justice reverses the

resolution of the provincial or city fiscal or chief state prosecutor, he shall

direct the fiscal concerned to file the corresponding information without

conducting another preliminary investigation or to dismiss or move for

dismissal of the complaint or information."

This appeal rests upon the sound discretion of the secretary of justice arising from his power of

supervision and control over the prosecuting arm of the government, not on a substantial right

on the part of the accused as claimed by petitioner.

Appeal Did Not Divest the

Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an information has been

filed, trial courts should defer or suspend arraignment and further proceedings until the appeal

is resolved. Such deferment or suspension, however, does not signify that the trial court isipso

facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial

court, is not lost despite a resolution by the secretary of justice to withdraw the information or

to dismiss the case.

Judicial Review of the Resolution

of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual

controversies involving rights which are legally demandable and enforceable. Such power

includes the determination of whether there has been a grave abuse of discretion amounting to

lack or excess of jurisdiction on the part of any branch or instrumentality of the

government. 28 Under this definition, a court is without power to directly decide matters over

which full discretionary authority has been delegated to the legislative or executive branch of

the government. It is not empowered to substitute its judgment for that of Congress or of the

President. It may, however, look into the question of whether such exercise has been made in

grave abuse of discretion.

Judicial review of the acts of other departments is not an assertion of superiority over them or a

derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral

Commission: 29

". . . [When the judiciary mediates to allocate constitutional boundaries, it does

not in reality nullify or invalidate an act of the legislature, but only assess the

solemn and sacred obligation assigned to it by the Constitution to determine

conflicting claims of authority under the Constitution and to establish for the

parties in an actual controversy the rights which that instrument sources and

guarantees to them. This is in truth all that is involved in what is termed

'judicial supremacy' which properly is the power of the judicial review under

the Constitution. . ."

It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to

review the decisions of the government prosecutors under him. In Crespo, the secretary was

merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4

of the Rules of Court, which recognizes such power, does not, however, allow the trial court to

automatically dismiss the case or grant the withdrawal of the information upon the resolution of

the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of

Appeals 30 and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial

court to make its own evaluation of the merits of the case, because granting the motion to

dismiss or to withdraw the information is equivalent to affecting a disposition of the case itself.

The Marcelo and Martinez

Cases are Consistent

In Marcelo vs. Court of Appeals, 31 this Court ruled that, although it is more prudent to wait

for a final resolution of a motion for review or reinvestigation from the secretary of justice

before acting on a motion to dismiss or a motion to withdraw an information, a trial court

nonetheless should make its own study and evaluation of said motion and not rely merely on

the awaited action of the secretary. The trial court has the option to grant or deny the motion to

dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and

whether after a reinvestigation or upon instructions of the secretary who reviewed the records

of the investigation; provided that such grant or denial is made from its own assessment and

evaluation of the merits of the motion.

In Martinez vs. Court of Appeals, 32 this Court overruled the grant of the motion to dismiss

filed by the prosecuting fiscal upon the recommendation of the secretary of justice because,

such grant was based upon consideration other than the judge's own assessment of the matter.

Relying solely on the conclusion of the prosecution to the effect that there was no sufficient

evidence against the accused to sustain the allegation in the information, the trial judge did not

perform his function of making an independent evaluation or assessment of the merits of the

case.

Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of

Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or

information is filed in court, any disposition of the case such as its dismissal or its continuation

rests on the sound discretion of the court. Trial judges are thus required to make their own

assessment of whether the secretary of justice committed grave abuse of discretion in granting

or denying the appeal, separately and independently of the prosecution's or the secretary's

evaluation that such evidence is insufficient or that no probable cause to hold the accused for

trial exists. They should embody such assessment in their written order disposing of the motion.

The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo,

the dismissal of the criminal action upon the favorable recommendation of the Review

Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private

complainant's appeal to the secretary of justice. In effect, the secretary's opinion was totally

disregarded by the trial court. In contrast, inMartinez the dismissal of the criminal action was

an "erroneous exercise of judicial discretion" as the trial court relied hook, line and sinker on

the resolution of the secretary, without making its own independent determination of the merits

of the said resolution.

No Grave Abuse of Discretion in the

Resolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the

correctness of the justice secretary's resolution has been amply threshed out in petitioner's

letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even

the exhaustive discussion in the motion for reconsideration — all of which were submitted to

the court — the trial judge committed grave abuse of discretion when it denied the motion to

withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial

court's order is inconsistent with our repetitive calls for an independent and competent

assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to

evaluate the secretary's recommendation finding the absence of probable cause to hold

petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the

trial without stating his reasons for disregarding the secretary's recommendation.

Had he complied with his judicial obligation, he would have discovered that there was, in fact,

sufficient ground to grant the motion to withdraw the information. The documents before the

trial court judge clearly showed that there was no probable cause to warrant a criminal

prosecution for libel.

Under the "established scheme of things" in criminal prosecutions, this Court would normally

remand the case to the trial judge for his or her independent assessment of the motion to

withdraw the information. However, in order not to delay the disposition of this case and to

afford the parties complete relief, we have decided to make directly the independent assessment

the trial court should have done. The petitioner has attached as annexes to the present petition

for review the information, which contains a complete and faithful reproduction of the subject

letter, the resolution of the secretary of justice, the prosecution's motion for reconsideration of

the trial court's Order of February 22, 1993, and even the private complainant's opposition to

said motion. The records below have been reproduced and submitted to this Court for its

appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets.

We thus proceed to examine the substance of the resolution of the secretary of justice. The

secretary reversed the finding of probable cause on the grounds that (1) the subject letter was

privileged in nature and (2) the complaint was merely a countercharge.

In every case for libel, the following requisites must concur:

"(a)it must be defamatory;

(b)it must be malicious;

(c)it must be given publicity; and

(d)the victim must be identifiable."

At the preliminary investigation stage, these requisites must show prima facie a well-founded

belief that a crime has been committed and that the accused probably committed it. A cursory

reading of the information immediately demonstrates a failure on the part of the complainant to

establish the foregoing elements of libel.

Every defamatory imputation, even if true, is presumed malicious, if no good intention or

justifiable motive for making it is shown. There is malice when the author of the imputation

is prompted by personal ill will or spite and speaks not in response to duty but merely to

injure the reputation of the person who claims to have been defamed. 33 In this case,

however, petitioner's letter was written to seek redress of proper grievance against the

inaccurate distribution and payment of professional fees and against unfair treatment in the

Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged

communication under Article 354(1) of the Revised Penal Code which provides:

"ART. 354.Requirement of publicity. — Every defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and

justifiable motive for making it is shown, except in the following cases:

1.A private communication made by any person to another in the performance

of any legal, moral or social duty; and

The rule on privileged communication is that a communication made in good faith on any

subject matter in which the communicator has an interest or concerning which he has a duty, is

privileged if made to a person having a corresponding interest or duty, although it contains

incriminatory matter which, without the privilege, would be libelous and actionable. Petitioner's

letter was a private communication made in the performance of a moral duty on her part. Her

intention was not to inflict an unjustifiable harm on the private complainant, but to present her

grievance to her superior. The privileged nature of her letter overcomes the presumption of

malice. There is no malice when justifiable motive exists; and in the absence of malice, there is

no libel. We note that the information itself failed to allege the existence of malice.

Thus, we agree with the ruling of the secretary of justice: 34

". . . (T)he subject letter was written to bring to the attention of the Director of

the Philippine Heart Center for Asia and other responsible authorities the

unjust and unfair treatment that Dr. Ledesma was getting from government

employees, and the subject letter is a complaint . . . on a subject matter in

which respondent has an interest and in reference to which she has a duty to

question the same is definitely privileged (US vs. Bustos, 37 Phil. 131).

Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing

Santiago vs. Calvo, 48 Phil. 922, ruled that 'a communication made in good

faith upon any subject matter in which the party making the communication

has an interest or concerning which he has a duty is privileged although it

contains incriminatory or derogatory matter which, without the privilege,

would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct

evidence of respondent's righteous disposition of following the rule of law and

is a clear indication that her purpose was to seek relief from the proper higher

authority . . .

The same interpretation should be accorded the civil and administrative

complaints which respondent filed against complainants. They are mere

manifestations of her earnest desire to pursue proper relief for the alleged

injustice she got from complainants. If she was motivated by malice and ill-

will in sending the subject communication to the Director of the PHCA, she

would not have sent the second letter and filed the administrative and civil

cases against complainants."

In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official

duties, sends a communication to another officer or to a body of officers, who have a duty to

perform with respect to the subject matter of the communication, such communication does not

amount to publication within the meaning of the law on defamation. 35 Publication in libel

means making the defamatory matter, after it has been written, known to someone other than

the person to whom it has been written. 36 The reason for such rule is that "a communication of

the defamatory matter to the person defamed cannot injure his reputation though it may wound

his self-esteem. A man's reputation is not the good opinion he has of himself, but the estimation

in which others hold him." 37 In this case, petitioner submitted the letter to the director of said

hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no

"publicity" and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code.

Further, we note that the information against petitioner was filed only on July 27, 1992 or one

year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a

countercharge to give Complainant Torres a leverage against petitioner's administrative action

against him. lexlib

Ineluctably, Judge Asuncion's denial of the motion to withdraw the information and the

reconsideration thereof was not only precipitate but manifestly erroneous. This is further

compounded by the fact that he did not explain his grounds for his denial inasmuch as he did

not make an independent assessment of the motion or the arguments in the resolution of the

secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo

v. Mogul upon which, ironically, he supposedly rested his action, or to the directive

in Marcelo and Martinez where this Court required trial courts to make an independent

assessment of the merits of the motion.

WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to

Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED.

No costs.

SO ORDERED.

ANSON TRADE CENTER, INC., ANSON EMPORIUM CORPORATION and

TEDDY KENG SE CHEN, petitioners, vs. PACIFIC BANKING CORPORATION,

Represented by Its Liquidator, the President of the Philippine Deposit Insurance

Corporation, respondent.

D E C I S I O N

CHICO-NAZARIO, J p:

Before Us is a Petition for Review on Certiorari 1 under Rule 45 of the Revised Rules of Court

filed by petitioners Anson Trade Center, Inc., (ATCI), Anson Emporium Corporation (AEC),

and Teddy Keng Se Chen (Chen), seeking the reversal and the setting aside of the

Decision 2 dated 31 May 2007 and Resolution 3 dated 16 October 2007 of the Court of

Appeals in CA-G.R. SP No. 93734. In its assailed Decision, the Court of Appeals annulled the

Order 4 dated 10 October 2005 of the Regional Trial Court (RTC) of Manila, Branch 52,

dismissing Civil Case No. 01-102198 for failure of respondent Pacific Banking Corporation

(PBC) 5 to appear during the pre-trial. In its assailed Resolution, the Court of Appeals refused

to reconsider its earlier Decision. ESITcH

The following are the undisputed facts:

Petitioners ATCI and AEC are corporations engaged in retail and/or wholesale general

merchandising. 6 Petitioner Chen is the Vice Head of said commercial entities. Respondent is a

closed banking institution undergoing liquidation by the Philippine Deposit Insurance

Corporation (PDIC).

On different dates, petitioner ATCI obtained several loans 7 from respondent, amounting to

P4,350,000.00. On 26 October 1984, petitioner AEC also received the amount of

P1,000,000.00 as a loan from respondent. As security for the said loan obligations, petitioner

Chen, with the late Keng Giok, 8 executed, on behalf of petitioners ATCI and AEC, two

Continuing Suretyship Agreements on 16 September 1981 and 1 March 1982. The Continuing

Suretyship Agreements provided that, as security for any and all the indebtedness or obligation

of petitioners ATCI and AEC, the respondent had the right to retain a lien upon any and all

moneys or other properties and/or the proceeds thereof in the name or for the account or credit

of petitioners ATCI and AEC deposited or left with respondent. Subsequently, petitioners

defaulted in the payment of their loans. Respondent made several demands for payment upon

petitioners, to no avail.

This prompted respondent to file before the RTC a collection case against petitioners, docketed

as Civil Case No. 01-102198.

On 14 January 2002, petitioner Chen, instead of filing an Answer to the Complaint of

respondent in Civil Case No. 01-102198, filed a Motion to Dismiss. Petitioners ATCI and

AEC, together with the Estate of Keng Giok, also jointly filed a Motion to Dismiss. Respondent

filed its Comment/Opposition to the Motions to Dismiss Civil Case No. 01-102198, to which

petitioners Chen, ATCI, and AEC, with the Estate of Keng Giok, filed their Replies. Due to the

inaction of the RTC on the Motions to Dismiss, respondent filed Motions to Resolve on 14

January 2003 and on 29 October 2003. In an Order dated 4 November 2004, the RTC denied

the Motions to Dismiss but granted the prayer to drop Keng Giok as defendant since he was

long dead prior to the institution of Civil Case No. 01-102198. TDcAaH

After petitioners filed their joint Answer to the Complaint, a pre-trial conference was set by the

RTC on 4 April 2005. All the parties were present at the scheduled pre-trial where the RTC

first explored the possibility of an amicable settlement among the parties by referring the case

to the Philippine Mediation Center for arbitration. The arbitration proceedings were, however,

unsuccessful. Thus, the case was referred back to the RTC for a full-blown trial.

In order to simplify the issues to be threshed out in the trial, another pre-trial conference was

scheduled by the RTC on 10 October 2005, which respondent failed to attend.

Petitioners moved for the dismissal of Civil Case No. 01-102198 on the ground of the non-

appearance of respondent at the pre-trial of 10 October 2005, which was granted, without

prejudice, by the RTC in an Order issued on even date. Respondent filed with the RTC a

Motion for Reconsideration of the court's order of dismissal, in which respondent prayed for

the relaxation of the rule on non-appearance in the pre-trial, citing excusable negligence on its

part and in the interest of justice and equity. The RTC denied the Motion for Reconsideration

of respondent in another Order dated 17 January 2006.

The above precipitated respondent to file with the Court of Appeals a Petition

for Certiorari under Rule 65 of the Revised Rules of Court, which was docketed as CA-G.R. SP

No. 93734. Respondent prayed for the reversal of the RTC Orders dated 10 October 2005 and

17 January 2006, arguing that the RTC committed grave abuse of discretion amounting to lack

or excess of jurisdiction when it dismissed Civil Case No. 01-102198 due to the non-

appearance of respondent at the pre-trial held on 10 October 2005. Respondent asserted that its

absence was not deliberate or intentional. Its liquidator, PDIC, was undergoing a reorganization

resulting in, among other things, the trimming down of the departments handling litigation

work from four to one; and the lack of manpower to handle more than 400 banks ordered

closed by the Monetary Board. Respondent pleaded for the relaxation of the rules to avert

irreparable damage to it. cDICaS

The Court of Appeals rendered a Decision on 31 May 2007, granting the Petition of respondent

and reversing the assailed RTC Orders which dismissed Civil Case No. 01-102198. According

to the appellate court, the RTC lost sight of the fact that even the Rules of Court mandate a

liberal construction of the rules and the pleadings in order to effect substantial justice; and that

overriding all the foregoing technical considerations is the trend in the rulings of the court to

afford every party-litigant the amplest opportunity for the proper and just determination of his

cause, freed from the constraints of technicalities. 9

In a Resolution dated 16 October 2007, the Court of Appeals refused to reconsider its earlier

Decision.

Petitioners now come before us via this instant Petition for Review on Certiorari raising the

following issues:

I

WHETHER OR NOT THE REVERSAL OF THE TRIAL COURT'S ORDER

DATED OCTOBER 10, 2005 DISMISSING [herein respondent]'S

COMPLAINT FOR ITS FAILURE TO APPEAR AT THE PRE-TRIAL WAS

IN ACCORDANCE WITH THE 1997 RULES ON CIVIL PROCEDURE

AND APPLICABLE JURISPRUDENCE.

II

WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION IN

DISMISSING RESPONDENT'S COMPLAINT BECAUSE OF ITS NON-

APPEARANCE AT PRE-TRIAL. 10

At the core of this controversy is a question of procedure.

The petitioners, on one hand, argue that the appearance of the parties during pre-trial is

mandatory, and the absence of respondent therefrom constitutes a serious procedural blunder

that merits the dismissal of its case.

On the other hand, respondent claims that the Rules must be relaxed if it will cause irreparable

damage to a party-litigant and to promote the ends of justice. Respondent urges us to brush

aside technicalities and to excuse its non-appearance during the pre-trial conference. DaScCH

We find the Petition unmeritorious.

Pre-trial, by definition, is a procedural device intended to clarify and limit the basic issues

raised by the parties 11 and to take the trial of cases out of the realm of surprise and

maneuvering. 12 It is an answer to the clarion call for the speedy disposition of cases. Hailed as

the most important procedural innovation in Anglo-Saxon justice in the nineteenth

century, 13 it thus paves the way for a less cluttered trial and resolution of the case. 14

Pertinent provisions of Rule 18 of the Revised Rules of Court on Pre-Trial read:

SEC. 4.Appearance of parties. — It shall be the duty of the parties and their

counsel to appear at the pre-trial. The non-appearance of a party may be

excused only if a valid cause is shown therefor or if a representative shall

appear in his behalf fully authorized in writing to enter into an amicable

settlement, to submit to alternative modes of dispute resolution, and to enter

into stipulations or admissions of facts and of documents.

SEC. 5.Effect of failure to appear. — The failure of the plaintiff to appear

when so required pursuant to the next preceding section shall be cause for

dismissal of the action. The dismissal shall be with prejudice, unless otherwise

ordered by the court. A similar failure on the part of the defendant shall be

cause to allow the plaintiff to present his evidence ex parte and the court to

render judgment on the basis thereof.

Pursuant to the afore-quoted provisions, non-appearance by the plaintiff in the pre-trial shall be

cause for dismissal of the action. However, every rule is not without an exception. In fact,

Section 4, Rule 18 of the Revised Rules of Court explicitly provides that the non-appearance of

a party may be excused if a valid cause is shown therefor. We find such a valid cause extant in

the case at bar. There is no question that herein respondent received notice of the pre-trial

conference scheduled on 10 October 2005, but it failed to attend the same. Such non-

appearance notwithstanding, the Court of Appeals annulled the 10 October 2005 Order of the

RTC dismissing Civil Case No. 01-102198 after finding that respondent did not intentionally

snub the pre-trial conference. There is no reason for us to disturb such finding. CcHDSA

The Monetary Board ordered the closure of respondent by reason of insolvency on 5 July 1985,

and it has since been represented by its liquidator PDIC in all its undertakings. Still in the

course of the liquidation of respondent, its liquidator PDIC was reorganized in the late 2004 to

early 2005. The four departments in the PDIC handling litigation were reduced to one, with the

new Litigation Department having only four in-house counsels who assumed thousands of

cases arising from the closure by the Monetary Board of more than 400 banks. It is

understandable how the notice for the pre-trial conference in Civil Case No. 01-102198

scheduled on 10 October 2005 could be lost or overlooked, as the PDIC was still coping and

adjusting with the changes resulting from its reorganization.

It is important to note that the respondent was not remiss in its duties to prosecute its case.

Except for the lone instance of the pre-trial conference on 10 October 2005, respondent

promptly and religiously attended the hearings set by the RTC. In fact, it appears on the records

that a pre-trial conference in Civil Case No. 01-102198 was first held on 4 April 2005, during

which respondent was present. When the RTC did not immediately act on the Motions to

Dismiss of petitioners, it was respondent which filed two Motions to Resolve. The actuations of

respondent reveal its interest in prosecuting the case, instead of any intention to delay the

proceedings.

In Bank of the Philippine Islands v. Court of Appeals, 15 we ruled that in the absence of a

pattern or scheme to delay the disposition of the case or a wanton failure to observe the

mandatory requirement of the rules, courts should decide to dispense rather than wield their

authority to dismiss.

If Civil Case No. 01-102198 is allowed to proceed to trial, it will not clog the dockets of the

RTC or run counter to the purposes for holding a pre-trial. Inconsiderate dismissals, even

without prejudice, do not constitute a panacea or a solution to the congestion of court dockets;

while they lend a deceptive aura of efficiency to records of individual judges, they merely

postpone the ultimate reckoning between the parties. In the absence of clear lack of merit or

intention to delay, justice is better served by a brief continuance, trial on the merits, and final

disposition of cases before the court. 16 DICcTa

Moreover, respondent is already insolvent and undergoing liquidation. It instituted Civil Case

No. 01-102198 precisely to recover from petitioners the unpaid loans. Even if the dismissal of

Civil Case No. 01-102198 by the RTC was without prejudice, the re-filing of the case would be

injurious to respondent. Respondent already paid P344,878.23 as docket fees for Civil Case No.

01-102198 and with the dismissal of said case, the amount would be forfeited. Respondent

would have to pay docket fees once more when it re-files its Complaint, a substantial amount

considering that respondent is already financially shaped. As the Court of Appeals noted, for

respondent to again pay docket fees for the re-filing of its Complaint against petitioners would

truly be detrimental to the creditors of respondent.

Given the foregoing, the Court of Appeals did not err in pronouncing that the RTC committed

grave abuse of discretion when it dismissed Civil Case No. 01-102198 for the failure of

respondent to attend the pre-trial conference on 10 October 2005. As the appellate court so

astutely stated:

In refusing to resuscitate Civil Case No. 01-102 198 despite a showing that

there was an excusable ground for the [herein respondent]'s absence during the

pre-trial, the respondent judge manifested a dire fixation towards procedural

perfection. Indeed, the extraordinary writ of certiorari would lie when a trier's

obsession with the stringent tenets of technicality would occasion an injustice

against a party litigant.

Litigation is not a game of technicality, in which one more deeply schooled and skilled in the

subtle art of movement and position entraps and destroys the other. It is rather a contest in

which each contending party fully and fairly lays before the court the facts in issue and then,

brushing aside as wholly trivial and indecisive all imperfection of forms and technicalities of

procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won

by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and

becomes its great hindrance and chief enemy, deserves scant consideration from courts. 17

As we have stressed emphatically on previous occasions, the rules of procedure may not be

misused and abused as instruments for the denial of substantial justice. Here is another

demonstrative instance of how some members of the bar, availing themselves of their

proficiency in invoking the letter of the rules without regard to their real spirit and intent,

succeed in inducing courts to act contrary to the dictates of justice and equity, and, in some

instances, to wittingly or unwittingly abet unfair advantage by ironically camouflaging their

actuations as earnest efforts to satisfy the public clamor for speedy disposition of litigations,

forgetting all the while that the plain injunction of Section 2 of Rule 1 is that the "rules shall be

liberally construed in order to promote their object and to assist the parties in obtaining" not

only "speedy" but more imperatively, "just . . . and inexpensive determination of every action

and proceeding." 18 DaAETS

WHEREFORE, premises considered, the instant Petition for Review on Certiorari is hereby

DENIED. The Decision dated 31 May 2007 and Resolution dated 16 October 2007 of the Court

of Appeals are AFFIRMED. Costs against the petitioners.

SO ORDERED.

RODANTE D. MARCOLETA, complainant, vs. RESURRECCION Z. BORRA AND

ROMEO A. BRAWNER, respondents.

D E C I S I O N

CARPIO-MORALES, J p:

A Complaint 1 for disbarment was filed by Atty. Rodante D. Marcoleta (complainant) against

respondents Commissioners Resurreccion Z. Borra (Borra) and Romeo A. Brawner (Brawner)

of the Commission on Elections (Comelec) charging them with violating Canons 1 (1.01, 1.02

and 1.03) and 3 (3.01, 3.02, 3.05 and 3.06) of the Code of Judicial Conduct 2 and Canons 4, 5,

6 and 17 of the Canons of Judicial Ethics. 3Additionally, complainant charges respondents of

violating Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public

Officials and Employees. 4 SCaTAc

During the 2007 National and Local Elections, the warring factions of complainant and

Diogenes S. Osabel (Osabel) each filed a separate list 5 of nominees for the party-list

group Alagad.

With Alagad winning a seat in the House of Representatives, the two protagonists contested the

right to represent the party. By Omnibus Resolution 6 of July 18, 2007, the dispute was

resolved by the Comelec's First Division in favor of Osabel. Commissioner Borra wrote

theponencia while Commissioner Brawner concurred.

The dispute was elevated to the Comelec En Banc which, by Resolution 7 of November 6,

2007, reversed the First Division Resolution and reinstated the certificate of nomination of

complainant's group. For failing to muster the required majority voting, 8 however, the

Comelec ordered the re-hearing of the controversy. Notwithstanding the conduct of a re-

hearing, the necessary majority vote could not still be obtained. 9The Comelec's First Division's

Omnibus Resolution was eventually affirmed. 10 Hence, arose the present complaint for

disbarment, complainant alleging as follows:

8.. . . . respondents [Borra and Brawner] promulgated a highly questionable

and irregular Omnibus Resolution [Annexes "F" and "F-1"], that was

characterized by manifest partiality, evident bad faith, and gross inexcusable

negligence as evidenced in the TIMING andMANNER by which the case was

eventually disposed by herein respondents in their Division.

9.Respondents deliberately delayed the resolution of the case (from 5 days as

mandated under Sec. 8, Rule 18 of the Comelec Rules of Procedure) to nearly

4 months after the same was deemed submitted for decision on March 20,

2007. The delay was intentional because if the case was resolved before May

14, 2007, [Osabel] will be left alone to campaign for the Party and considering

that he is relatively unknown and without resources, certainly he cannot make

the Party win. . . . . . Hence, in first making sure that ALAGAD wins a seat

and, thereafter, resolved the case in favor of one who neither campaigned nor

spent for it, both respondents subverted and/or frustrated the will of the

423,090 voters who supported ALAGAD and who have always believed that it

was complainant who will represent them in the 14th Congress. This is an

extortionate act to say the least! DCESaI

10.Even the manner with which the case was disposed is fraught with gross

deception and evident manipulation. First of all, the respondents changed the

sole and common issue stipulated by the parties: from one that is central to the

complete and final resolution of the controversy, into one that was beyond the

Comelec's jurisdiction.

11.Respondents were evidently in bad faith in muddling the issue (which resulted in an

erroneous ruling) . . . .

xxx xxx xxx

13.The assailed 20-page Omnibus Resolution never cited a single law (in

violation of Sec. 14, Art. VIII of the Philippine Constitution as well as Rule

18, Sec. 2, last par. of their own Rules) in erroneously ruling that petitioner's

resignation cannot be considered because it was not in written form . . . .

14.Both respondents lied in actually delving into the root of the parties'

conflict despite their avowal to the contrary and in giving"more credence to

the Minutes submitted by [Osabel]" (Annex "F-13.b") despite their declaration

that said "minutes partisan from the start . . . in a power struggle within the

organization, cannot be upheld as faithful depiction of prevailing facts." They

also lied in not relying on the Party's Constitution and By-Laws (CBL),

contrary to what they declared to do, when compared to the En Banc ponencia

[Annex "J"] that reversed their Omnibus Resolution . . . .

xxx xxx xxx

16.Respondent Borra's "dissenting opinion" (if it can be qualified as such) was

a mere marginal note, written above his signature that reads: "In conscience

and judiciousness, I vote to affirm the 1st Div. Omnibus Resolution." . . . .

17.Respondent Borra knows only too well that all cases are decided and

affirmed on the basis of evidence, not on conscience. For conscience is that

instantaneous perception of right or wrong that can only be summoned by the

spirit being a part of the Divine Wisdom. . . . .

18.It was clearly evasive for respondent Borra to use the absurd excuse"in

conscience and judiciousness" to free himself from the mandatory submission

of a separate dissenting opinion . . . . ATcaEH

20.Respondent Brawner's Dissenting Opinion [Ref. Annex "I"], on the other

hand, only confirmed his leaning and partiality towards [Osabel] as clearly

shown by his shallow disquisition, if not twisted, dissent. . . . .

21.Respondent Brawner's irresponsible claim (on page 4) that "all official

records of ALAGAD's proceedings point out to Osabel's continuing as

ALAGAD's President" and "the recent decision in SPA No. 04-153 dated June

12, 2007 prove the continuing stature of Osabel as ALAGAD President" is not

supported by facts. . . . . Thus, it was reckless, if not unthinkable, for Brawner

to have ascribed "continuing stature" upon petitioner based on a "position"

appearing in the title [Annex "O-1"] of a different and old case that was

disposed only recently. This ruse is gobbledygook, plain and simple! [Padua v.

Robles, 66 SCRA 488].

(Emphasis, underscoring and italics in the original)

Complainant filed a Supplemental Complaint 11 on February 12, 2008, this time charging

respondent Brawner of "tamper[ing] the record of the proceedings in [SPA No. 07-020]" by

falsely alleging in an Order dated February 5, 2008 that there had been a re-hearing; that both

parties had agreed to simultaneously file their memoranda during the re-hearing; and that the

parties filed their respective memoranda.

Respondent Brawner, in his Answer 12 dated April 2, 2008, asserted in the main that "the

remedy of complainant is not to file a complaint for disbarment, but to file an appeal before

[the Supreme Court] via [p]etition for [c]ertiorari", and that being members of a constitutional

body enjoying presumption of regularity in the performance of their functions, he and co-

respondent Borra "are supposed to be insulated from a disbarment complaint for being

impeachable officers." aHDTAI

In his Comment, 13 respondent Borra contends that the Code of Judicial Conduct and Canons

of Judicial Ethics cannot be made to apply to him and his co-respondent, they not being

members of the judiciary; and that since they perform quasi-judicial functions as well as

administrative duties, they are bound by the Comelec's own set of internal rules and procedure

over and above a Code of Conduct that prescribes the norms and standards of behavior to be

observed by the officials and employees of the Comelec, a constitutional body.

Respondent Borra further contends that the present complaint is premature as "the validity and

legality of the resolutions are still subject to review"; and that the complaint is meant to "harass

[him] and punish him for exercising his judgment on the case filed before him".

To respondents' Answer and Comment, complainant filed Replies, 14 alleging that respondents

cannot take refuge in their being impeachable public officers to insulate them from any

disbarment complaint. To complainant, "the insulation from disbarment complaint of

impeachable public officers when referring particularly to the members of the [Comelec]

applies only to the 'majority' of its members who should all be members of the Philippine bar",

citing Section 1 (1) of Article IX-C of the Constitution. 15

Complainant goes on to charge respondent Borra of violating Republic Act No. 3019 or the

Anti-Graft and Corrupt Practices Act for collecting his retirement benefits "hurriedly despite

knowledge of the existence of criminal and administrative charges against him". Additionally,

he charges respondents of culpable violation of the Constitution when they, together with the

other members of the Comelec, adjusted their compensation scheme under Resolution No.

7685. 16

The Court takes notice that respondent Borra retired from the Comelec on February 2, 2008

while respondent Brawner passed away on May 29, 2008.

As regards respondent Brawner then, the present case is already moot.

At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman, 17 In Re:

Raul M. Gonzales 18 and Cuenco v. Fernan, 19 has laid down the rule that an impeachable

officer 20 who is a member of the Bar cannot be disbarred without first being

impeached. Complainant's availment of Section 1 (1) of Article IX-C of the Constitution to

skirt this rule is specious. acHETI

It bears emphasis that the provision that majority of Comelec members should be lawyers

pertains to the desired composition of the Comelec. While the appointing authority may follow

such constitutional mandate, the appointment of a full complement of lawyers in the Comelec

membership is not precluded.

At the time the present complaint was filed, respondents and three other

commissioners 21 were all lawyers. As an impeachable officer who is at the same time a

member of the Bar, respondent Borra must first be removed from office via the constitutional

route of impeachment before he may be held to answer administratively for his supposed errant

resolutions and actions.

Respondent Borra having retired from the Comelec does not, of course, necessarily call for the

dismissal of the complaint. At the heart, however, of the disbarment complaint is the issuance

of Omnibus Resolution of July 18, 2007 penned by respondent Borra when he was still a

member of the Comelec's First Division.

The supposed failure of respondent Borra to resolve the controversy between complainant's

faction and the other faction of Alagad within the prescribed period does not render the

Omnibus Resolution null and void. Prescribed periods partake of a directory requirement, given

the Comelec's numerous cases and logistical limitations. 22

The Court thus finds respondent Borra's contention that the grounds-bases of the disbarment

complaint, fastened on supposed errors of judgment or grave abuse of discretion in the

appreciation of facts, are proper for an appeal, hence, complainant's remedy is judicial, not

administrative.

As for complainant's invocation of Section 58 of Article VII of the Omnibus Election

Code 23 reading:

The chairman and members of the Commission shall be subject to the canons

of judicial ethics in the discharge of their functions.

xxx xxx xxx (Emphasis and underscoring supplied),

the same relates to the quasi-judicial function of the Comelec, which function rests on

judgment or discretion, so that while it is of judicial nature or character, it does not involve

the exercise of functions of a judge. 24 IASEca

The same provision thus directs that in the exercise of the Comelec's quasi-judicial power, the

chairman and members should be guided by the canons of judicial ethics. It bears emphasis that

the New Code of Judicial Conduct for the Philippine Judiciary 25 applies only to courts of law,

of which the Comelec is not, hence, sanctions pertaining to violations thereof are made

exclusively applicable to judges and justices in the judiciary, not to quasi-judicial officers like

the Comelec chairman and members, who have their own codes of conduct to steer them.

Even if the Court were to gauge the assailed actions of respondent Borra under the Code of

Professional Responsibility, no specific incidents and sufficient evidence can be gathered to

show that respondent did engage in dishonest, immoral or deceitful conduct in his capacity as a

lawyer. It bears reiteration that the acts particularized in the complaint pertain to respondent

Borra's duties as a Comelec commissioner.

As for the release of retirement benefits to respondent Borra, there is nothing irregular

therewith, the same being in line with Memorandum Circular No. 10 (series of 1995) of the

Office of the Ombudsman reading:

. . . a person retiring from the government service, whether optional or

compulsory, needs only to present a certification from this Office whether or

not he has a pending criminal or administrative case with it. In the event the

certification presented states that the prospective retiree has a pending

case, the responsibility of determining whether to release his retirement

benefits, as well as the imposition of necessary safeguards to ensure restitution

thereof in the event the retiree is found guilty, rests upon and shall be left to

the sound discretion of the head of the department, office or agency

concerned. (Emphasis and underscoring in the original)

Interestingly, while complainant singled out the participation of respondents Borra and

Brawner in the promulgation of the questioned resolutions, he spared the other commissioners

who were also signatories to the resolutions.

WHEREFORE, the complaint for disbarment against now deceased Comelec Commissioner

Romeo Brawner is DISMISSED for being moot. That against Commissioner Resurreccion

Borra is likewise DISMISSED for lack of merit. HCETDS

SO ORDERED.

JOHN CHRISTEN S. HEGNA, complainant, vs. ATTY. GOERING G.C.

PADERANGA, respondent.

DECISION

PERALTA, J p:

Before this Court is a letter-complaint 1 dated June 3, 2002, filed by complainant John Christen

S. Hegna with the Office of the Bar Confidant (OBC) against respondent Atty. Goering G.C.

Paderanga for deliberately falsifying documents, which caused delay in the execution of the

decision rendered by the Municipal Trial Courts in Cities (MTCC), Branch 8, Cebu City, in

Civil Case No. R-45146, entitled John Hegna v. Mr. & Mrs. Eliseo Panaguinip.

Herein complainant was the lessee of a portion of Lot No. 5529, situated at Barangay Quiot

Pardo, Cebu City, which was owned by the heirs of Sabina Baclayon. The heirs of Baclayon,

through their representative Gema Sabandija, entered into a contract of lease with complainant

for a period of ten (10) years, commencing from June 26, 1994, with a rental of P3,000.00 per

year, or P250.00 per month.

On September 26, 2001, complainant filed a complaint for forcible entry against therein

defendants docketed as Civil Case No. R-45146, entitled John Hegna v. Mr. & Mrs. Eliseo

Panaguinip, with the Municipal Trial Court in Cities (MTCC), Branch 8 of Cebu City. In said

complaint, he alleged that in about the second week of March 1996, therein defendants entered

the vacant portion of the leased premises by means of force, intimidation, threat, strategy or

stealth; destroyed the barbed wire enclosing the leased premises of complainant, then built a

shop on the said premises without complainant's consent. He averred that despite his demands

upon therein defendants to vacate the premises and demolish the structure built thereon, the

latter failed and refused to comply. 2 AcHCED

When therein defendants failed to file their Answer, complainant filed a motion that judgment

be rendered in default.

On December 21, 2001, the MTCC rendered a Decision in favor of complainant, ordering

therein defendants to vacate the leased premises and to pay complainant compensatory

damages for illegal occupation and use of the subject property, as well as attorney's fees and

costs of suit. The dispositive portion of the decision reads as follows:

WHEREFORE, this Court directs judgment against Defendants MR. & MRS.

ELISEO PANAGUINIP and directs them to vacate Lot No. 5529 over the

portion in an area of 1,596 square meters thereof, as leased to herein Plaintiff,

situated at Barangay Quiot Pardo, Cebu City, and to pay Plaintiff the sum of

PESOS: ONE THOUSAND (P1,000) per month from the second week of

March 1996 until the present date by way of compensatory damages for the

illegal occupation and use of the contested property, subject to 12% annual

legal interest until fully paid, and thereafter pay the same amount per month

until they vacate the subject property hereof, and to further pay Plaintiff the

sum of P5,000.00 by way of Attorney's Fees, and the costs of this

suit. EAHDac

SO ORDERED.

On February 8, 2002, the MTCC granted the Motion for Execution of Judgment filed by

complainant, and issued a Writ of Execution on February 18, 2002.

On February 21, 2002, Sheriff Edilberto Suarin of the MTCC, Branch 8 of Cebu City levied on

certain personal properties of therein defendants.

On March 1, 2002, therein defendants requested the complainant to move for the dismissal of

the complaint against them so as to prevent the issuance of the writ of execution thereon. While

therein defendants wanted to amicably settle the case, however, they failed to mention the

proposed settlement amount stated in the decision dated December 21, 2001.

Subsequently, respondent Atty. Goering G.C. Paderanga filed an Affidavit of Third-Party

Claim 5 dated March 5, 2002 before Sheriff Suarin, the sheriff executing the judgment in the

said civil case. In the said affidavit, respondent claimed that he was the owner of Lot No. 3653-

D-1 and a FUSO (Canter series) vehicle, which he bought from therein defendants on

November 27, 2001, 6 and December 12, 2001, 7 respectively, both of which could be

erroneously levied by a writ of execution issued in the civil case.

On April 3, 2002, Sheriff Suarin tried to levy therein defendants' parcel of land and motor

vehicle, but failed to do so because of the third-party claim filed by

respondent. 8 Subsequently, on April 24, 2002, respondent filed a Complaint 9 for Annulment

of Judgment with prayer for the issuance of an injunction and temporary restraining order

(TRO) with damages against complainant before the Regional Trial Court (RTC), Branch 13 of

Cebu City, docketed as Case No. CEB-27614, entitledMr. Eliseo Panaguinip, Mrs. Ma. Teresa

Panaguinip and Goering G.C. Paderanga v. John Hegna, Mila Hegna, Judge Edgemelo C.

Rosales and Edilberto R. Suarin.

In an Order 10 dated May 13, 2002, the RTC issued a writ of preliminary injunction enjoining

the MTCC to desist from further proceeding with the civil case, and the Sheriff to desist from

conducting a public auction of the levied properties of therein defendants. The RTC

subsequently dismissed respondent's complaint for annulment of judgment in its

Decision 11 dated June 29, 2006.

In a letter dated June 3, 2002, filed with the OBC, complainant alleged that he was filing a

complaint against respondent for "deliberately falsifying documents, causing delay and a

possible denial of justice to be served in Civil Case No. R-45146". He alleged that after the

decision in the said civil case was rendered, therein defendants called him on the telephone,

requesting the stay of the execution of judgment, as the latter would be settling their accounts

within ten days, but they failed to comply. IDETCA

On March 14, 2003, complainant filed a criminal complaint 12 for falsification of public

documents against respondent; false testimony and perjury against therein defendants; and

falsification under paragraph 6, Article 171 of the Revised Penal Code against Atty. Elena

Marie Madarang, notary public, before the Office of the City Prosecutor of Cebu City. Anent

the complaint against respondent, complainant averred that the third-party claim was full of

irregularities, to wit: (a) the Deed of Absolute Sale involving Lot No. 3653-D-1, covered by

TCT No. T-11127, dated November 27, 2001, had no record of transfer in the Register of

Deeds of Cebu City; (b) the registration of the motor vehicle allegedly owned by respondent by

virtue of the Deed of Absolute Sale dated December 21, 2001 did not reflect any change of

ownership from May 4, 2001; (c) the two Deeds of Absolute Sale dated November 27, 2001

and December 21, 2001 showed that both were notarized under Series of 2000 of the notary

public; (d) Notarial Register No. 177 on page 37, Book II showed erasures and tampering done

by substituting the intended entry of Joint Affidavit of Two Disinterested Person to a Deed of

Absolute Sale under the names of the spouses Eliseo and Ma. Teresa Panaguinip, therein

defendants, representing the sale of Lot No. 3653-D-1 under TCT No. 11127; and Notarial

Register No. 188 on Page 39, Book II of Atty. Madarang also had tampering and erasures, as

the entry of Affidavit of Loss was substituted with a Deed of Absolute Sale under the name of

Ma. Teresa Panaguinip representing the sale of the FUSO (Canter series); and (e) the

Community Tax Certificate number appearing in both Deeds of Absolute Sale was actually

issued to another person, not to therein defendant Ma. Teresa Panaguinip.

On April 28, 2003, the Office of the City Prosecutor of Cebu City dismissed the criminal

complaint for falsification of public documents against respondent for lack ofprima

facie evidence of guilt, as the allegations therein were similar to the instant administrative

complaint. 13

In his Comment 14 dated April 29, 2003 on the administrative complaint filed against him,

respondent argued that he did not falsify any document and maintained that he had already

satisfactorily explained the irregularities before the Office of the City Prosecutor. He added that

the genuineness and due execution of the deeds of sale had not been affected by the fact that he

failed to register the same. Also, he alleged that the MTCC Decision dated December 21, 2001

was unjust and void due to lack of jurisdiction, and for being based on spurious claims.

In a Resolution 15 dated July 9, 2003, the Court referred the administrative complaint to the

Integrated Bar of the Philippines (IBP) for investigation, report and recommendation/decision

within ninety (90) days from receipt of the record.

On November 21, 2003, the parties appeared in a mandatory preliminary conference and, upon

termination thereof, were ordered to submit their respective verified position papers within ten

(10) days, after which the case would be deemed submitted for resolution. 16 Complainant and

respondent submitted their position papers on December 11, 2003, 17 and December 2,

2003, 18 respectively. cTIESD

On June 1, 2005, the Investigating Commissioner of the IBP submitted his Report and

Recommendation, which contained the following observations:

III.FINDINGS:

Based on the resolution of the City Prosecutor's office in Cebu City, the

complaint against the Panaguinip spouses and Attys. Paderanga and Madarang

(the notary public) was dismissed for lack of prima facie of guilt. Such

resolution is accorded great weight but certainly not conclusive considering

the administrative nature of this instant complaint. In criminal prosecutions,

a prima facie evidence is necessary but in this instant case, substantial

evidence is all that [is] necessary to support a guilty verdict.

According to the Respondent, it was perfectly normal for him to obtain

properties without registering the same under his own name. In his Position

Paper, he even cited several other transactions where he merely possessed

Deeds of Sale but not Certification of Registration or Transfer Certificates of

Title. He alleged that for ESTATE PLANNING purposes, he intentionally left

these properties in the name of the previous owner. The alleged discrepancies

in the notarization were fully explained as well. The notary public explained

that the erasures in her Notarial Register were made to correct mistakes so that

entries will speak the truth. These corrections include the entries under entry

number 177 to indicate the correct entry which was the Deed of Sale executed

[by] the spouses Panaguinip. The original entry, Affidavit of Two

Disinterested Persons, was actually notarized but was later cancelled at the

request of the same affiants. The full explanation of these affiants, very

doubtful and highly suspect, was nevertheless taken into consideration by the

Prosecutor for reasons known only to him. The Respondents also managed to

convince the Cebu Prosecutor that the discrepancy in the Residence

Certificates was due to human error! STECAc

Not necessarily disagreeing with the findings of the City Prosecutor of Cebu

City, the Resolution dismissing the case for falsification is not entirely

convincing. There were certainly evidentiary matters which could have been

better addressed by a judge, namely, the affidavit of the secretary of the notary

public, the explanation in the incorrect entries in notarial register, the affidavit

of the two (2) witnesses who sought the cancellation of their original affidavit,

and the explanation of Paderanga himself regarding the difference in the dates.

Complainant is a layman who filed his own Position Paper unaided by counsel

while Respondent is a lawyer. Nevertheless, Complainant managed to present

one (1) piece of evidence not squarely addressed by Respondent Paderanga:

the letter handwritten by Respondent's clients, written in Cebuano, asking the

Complainant for mercy and forgiveness in relation to the forcible entry case.

Such letter was no longer necessary if indeed there was a GENUINE transfer

of ownership of properties owned by the Panaguinip spouses to their lawyer,

Respondent Paderanga. This letter, attached to the Complaint, was never

refuted in any way by Respondent Paderanga who may have skirted the issue

by inadvertence or by design. The letter dated March 1, 2002 indicates that the

Panaguinip spouses still believe and assert ownership over these properties

despite the existence of a Deed of Sale allegedly dated March 5, 2002.

Complainant also went further by attaching an Affidavit by a Third Person

who stated that the Panaguinip spouses still assert ownership over the parcel of

land and vehicle. EcIaTA

Moreover, Complainant alleged that Respondent invited him consecutive

times after the issuance of the writ of execution in the lower court; the first

was at the Majestic Restaurant, the second was at Club Cebu at Waterfront

Hotel. There was an offer to settle the judgment award of P100,000. During

the first meeting, the offer was P3,000, on the second meeting, this time with

the Panaguinip spouses, the offer was P10,000. When Complainant refused to

settle with Respondent, he received a copy of the Affidavit of Third-Party

Claim a few days later.

The parties did not stipulate this particular issue; however, this Commissioner

feels that for the final disposition of this case, it is worthy to mention Article

1491 of the Civil Code. It specifically states that:

Art. 1491.The following persons cannot acquire by purchase, even at

public or judicial auction, either in person or through the mediation of

another:

(5)Justices, judges, prosecuting attorneys, clerks of superior and

inferior courts, and other officers and employees connected with the

administration of justice, the property and rights in litigations or levied

upon execution before the court within whose jurisdiction or territory

they exercise their respective functions; this prohibition includes the

act of acquiring by assignment and shall apply to lawyers, with respect

to the property and rights which may be the object of any litigation in

which they may take part by virtue of their profession.

This is a classic case where a lawyer acquired the interests of his client in

certain properties subject for execution. Regardless of the court's apparent lack

of jurisdiction, Respondent Paderanga acquired the two (2) matters subject for

execution in the forcible entry case in violation of [the] Canon of Legal Ethics.

A thing is said to be in litigation not only if there is some contest or litigation

over it in court, but also the moment that becomes subject to the judicial action

of the judge. . . . DSCIEa

In all likelihood, although Complainant failed to get a favorable resolution

from the City Prosecutor's office in Cebu City, the Affidavit of Third Party

Claim was simulated to defeat the rights of Complainant herein. It is

immaterial that the decision of the lower court granting a judgment award was

subsequently reversed or nullified. It is immaterial that the City Prosecutor did

not find a prima facie case of falsification. The fact remains that there was a

MULTITUDE of irregularities surrounding the execution of the Affidavit and,

coupled with the letter sent by the Panaguinip spouses left unrebutted by

Respondent Paderanga, there is substantial evidence that the Affidavit of Third

Party Claim was purposely filed to thwart the enforcement of the decision in

the forcible entry case.

It is worthy to note that the proceedings before the prosecutor's office did not

take into consideration the handwritten letter from the Panaguinip spouses. For

whatever reason, Complainant did not present such letter, which if he did, the

prosecutor may come up with a different resolution.

IV.RECOMMENDATION

While Complainant cannot fully prove the existence of falsity in the execution

of the Affidavit of Third Party Claim, this Commissioner is convinced that

there was indeed an anomaly which constitutes a violation of the Canons of

Professional Responsibility. DCIAST

A lawyer ought to have known that he cannot acquire the property of his client

which is in litigation. . . . Respondent necessitates a heavy penalty since the

circumstances surrounding the transfer of ownership of properties tend to

indicate an anomalous transfer aimed to subvert the proper administration of

justice. The numerous discrepancies in the transfer document, some dismissed

as clerical errors and other explained by incredulous stories by way of

affidavits, compounded by the letter left uncontested by Respondent

Paderanga, inevitably lead a rational person to conclude that Paderanga may

not have acquired the properties prior to the judicial action of execution. Even

if the City Prosecutor found no prima facie case of falsification, this

Commissioner finds substantial evidence to support a conclusion that

Respondent Paderanga committed an ethical violation and should be meted the

penalty of suspension of five (5) years from the practice of law. 19

In a Resolution dated December 17, 2005, the IBP Board of Governors adopted and approved,

with modification, the Report and Recommendation of the Investigating Commissioner, viz.:

. . . finding the recommendation fully supported by the evidence on record and

the applicable laws and rules, and considering that a lawyer ought to know that

he cannot acquire the property of his client which is in litigation, Atty.

Goering Paderanga is hereby SUSPENDED from the practice of law for one

(1) year. 20 CcEHaI

On March 23, 2006, respondent filed with the Court a Motion for Reconsideration of the

Resolution of the IBP Board of Governors and, on August 18, 2006, a Supplemental Motion for

Reconsideration.

In a Resolution dated August 23, 2006, the Court referred the motion for reconsideration to the

IBP.

On December 11, 2008, the IBP issued a Resolution denying the motion for reconsideration,

and affirmed its Resolution dated December 17, 2005.

Under Section 27 of Rule 138 21 of the Rules of Court, a member of the Bar may be disbarred

or suspended on any of the following grounds: (1) deceit; (2) malpractice or other gross

misconduct in office; (3) grossly immoral conduct; (4) conviction of a crime involving moral

turpitude; (5) violation of the lawyer's oath; (6) willful disobedience of any lawful order of a

superior court; and (7) willfully appearing as an attorney for a party without authority. In the

present case, the Court finds respondent administratively liable for engaging in dishonest and

deceitful conduct.

Although respondent denied having acted as counsel for therein defendants, the Spouses

Panaguinip, in the forcible entry case filed by complainant, his involvement in the said case

was still highly suspect. After the writ of execution had been issued on February 18, 2002, he

went with defendants-spouses to amicably settle with complainant on two separate occasions,

ostensibly to protect his own interests. Complainant claimed that during those two meetings,

respondent did not disclose his ownership over the properties in question, leading the former to

believe that respondent was, in fact, the counsel for defendants-spouses. He averred that

respondent and defendant spouses initially offered a settlement of P3,000.00, which he refused

as he had already spent P10,000.00 on court expenses. On their second meeting, the offer had

been raised to P25,000.00, which again complainant declined, as the latter had, at that time,

spent P25,000.00. Complainant maintained that it was only after said meetings had transpired

that he received the affidavit of a third-party claim executed by respondent, stating that the

latter was the owner of the property and motor vehicle. On the other hand, respondent claimed

that the meetings took place in April 2002, after he had filed a third-party claim. aIcTCS

Had respondent been the rightful owner of a parcel of land and motor vehicle that were still

registered in the name of defendants-spouses, he should have immediately disclosed such fact

immediately and filed a third-party claim, as time was of the essence. Moreover, in their letter

dated March 1, 2002, defendants-spouses did not mention any transfer of ownership of the said

properties to respondent, as the former still believed that they owned the same. The continued

possession and ownership by defendants-spouses was also attested to by a certain Brigida

Lines, who executed an Affidavit 22 in favor of complainant.

Based on the foregoing, the Court is more inclined to believe that when complainant and

defendants-spouses failed to reach an agreement, respondent came forward as a third-party

claimant to prevent the levy and execution of said properties. He, therefore, violated Rule 1.01

of the Code of Professional Responsibility, 23 which provides that a lawyer shall not engage in

unlawful, dishonest, immoral or deceitful conduct. Under this rule, conduct has been construed

not to pertain exclusively to the performance of a lawyer's professional duties. 24 In previous

cases, 25 the Court has held that a lawyer may be disbarred or suspended for misconduct,

whether in his professional or private capacity, which shows him to be wanting in moral

character, honesty, probity and good demeanor; or unworthy to continue as an officer of the

court. TAIDHa

Notably, in the falsification case earlier filed, complainant was able to cite several irregularities

in the documents evidencing the deeds of sale in question: the non-registration by respondent of

the sale transactions; a Community Tax Certificate number appearing on said deeds which was

different from that issued to defendant Ma. Teresa Panaguinip; and the erasures of the entries

pertaining to said deeds from the Notarial Register.

Of these irregularities, only one can directly be attributable to respondent — his non-

registration of the sale transaction. He argues that the sales were valid despite non-registration,

and maintained that it was perfectly normal and regular for a lawyer like him to choose not to

register and cause the transfer of title of the land and the FUSO jeepney after the execution of

the Deeds of Sale, so the transactions would not appear in the records of the Bureau of Internal

Revenue, the City Assessor or the Register of Deeds, on the Land Registration Office. He

added that he had also bought four lots, which had not yet been transferred to his name, for

estate planning or speculation purposes. He claimed that he found it legally wise not to

immediately register after buying so that he would not pay for the expenses of the sale and

transfer twice, once he decided to sell; or place them in his children's name, and avoid paying

estate and inheritance taxes upon his death. 26

While the act of registration of a document is not necessary in order to give it legal effect as

between the parties, requirements for the recording of the instruments are designed to prevent

frauds and to permit and require the public to act with the presumption that a recorded

instrument exists and is genuine. 27 However, while the RTC was correct in holding that said

omission on respondent's part may not be considered falsification, he had shown an intent to

defraud the government, which had the right to collect revenue from him, as well as from other

persons who may have an interest in said properties.

Respondent violated the Lawyer's Oath, which mandates that he should support the

Constitution, obey the laws as well as the legal orders of the duly constituted authorities

therein, and do no falsehood or not consent to the doing of any in court. Further, he has also

failed to live up to the standard set by law that he should refrain from counseling or abetting

activities aimed at defiance of the law or at lessening confidence in the legal

system. 28 Respondent's act of non-registration of the deeds of sale to avoid paying tax may not

be illegal per se; but, as a servant of the law, a lawyer should make himself an exemplar for

others to emulate. The responsibilities of a lawyer are greater than those of a private citizen. He

is looked up to in the community. 29 Respondent must have forgotten that a lawyer must

refrain from committing acts which give even a semblance of impropriety to the

profession. EHaDIC

In cases wherein lawyers have similarly engaged in deceitful and dishonest conduct, the Court

has imposed the penalty of suspension from the practice of law ranging from six (6) months to

one (1) year.

In Spouses Donato v. Asuncion, Sr., 30 where therein respondent lawyer filed a complaint for

reformation of instrument to obtain financial gain, and prepared a contract which did not

express the true intention of the parties, he was found guilty of gross misconduct and suspended

from the practice of law for six (6) months.

In Yap-Paras v. Paras, 31 where therein respondent lawyer applied for free patents over lands

owned by another person and not in the former's physical possession, he was found guilty of

committing a falsehood in violation of the Lawyer's Oath and the Code of Professional

Responsibility and suspended from the practice of law for one (1) year, with a warning that the

commission of the same or similar offense in the future would result in the imposition of a

more severe penalty.

In the present case, the Investigating Commissioner and the IBP Board of Governors

recommended a penalty of suspension to be imposed upon respondent for five (5) years and

one (1) year, respectively. The Court, however, believes that a penalty of one (1) year is more

commensurate to respondent's deceitful and dishonest conduct.

WHEREFORE, respondent Atty. Goering G.C. Paderanga is found guilty of engaging in

dishonest and deceitful conduct, and is SUSPENDED from the practice of law for one (1) year,

with a stern warning that a repetition of the same or similar offense in the future would result in

the imposition of a more severe penalty.

Let a copy of this Decision be entered into respondent's record as a member of the Bar, and

notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the

Court Administrator for circulation to all courts in the country.

This Decision shall be immediately executory. EDISaA

SO ORDERED.

TORBEN B. OVERGAARD, complainant, vs. ATTY. GODWIN R.

VALDEZ, respondent.

R E S O L U T I O N

PER CURIAM p:

At bar is a Motion for Reconsideration, 1 dated, October 21, 2008 filed by respondent Godwin

R. Valdez (Valdez), praying that the September 30, 2008 decision of this Court disbarring him

from the practice of law be reconsidered by remanding the records of the case to the Integrated

Bar of the Philippines (IBP) Commission on Bar Discipline. He further prays that the IBP

Commission on Bar Discipline be directed to receive his Answer, evidence and Position Paper

and thereafter, that he be absolved of the charges against him and that his name be reinstated in

the Roll of Attorneys.

We have previously decided in Torben B. Overgaard v. Atty. Godwin R. Valdez, 3 that

respondent Valdez committed malpractice and gross misconduct in his office as attorney and is

thus unfit to continue discharging the trust reposed in him as a member of the bar. The

complainant, Torben Overgaard (Overgaard) engaged the services of respondent Valdez as his

legal counsel in two cases filed by him and two cases filed against him. Despite the receipt of

the full amount of legal fees of P900,000.00 as stipulated in a Retainer Agreement, the

respondent refused to perform any of his obligations under their contract for legal services,

ignored the complainant's request for a report of the status of the cases entrusted to his care, and

rejected the complainant's demands for the return of the money paid to him.

Complainant Overgaard filed a complaint for disbarment against Valdez before the IBP. During

the investigation, respondent Valdez did not participate despite due notice. He was declared in

default for failure to submit an answer and attend the mandatory conference. He did not submit

a position paper or attend the hearing.

On September 30, 2008, this Court held that respondent Valdez committed multiple violations

of the canons of the Code of Professional Responsibility. The dispositive portion of this

Decision states:

IN VIEW WHEREOF, respondent Atty. Godwin R. Valdez is hereby

DISBARRED and his name is ordered STRICKEN from the Roll of

Attorneys. He is ORDERED to immediately return to Torben B. Overgaard

the amount of $16,854.00 or its equivalent in Philippine Currency at the time

of actual payment, with legal interest of six percent (6%) per annum from

November 27, 2006, the date of extra-judicial demand. A twelve percent

(12%) interest per annum, in lieu of six percent (6%), shall be imposed on

such amount from the date of promulgation of this decision until the payment

thereof. He is further ORDERED to immediately return all papers and

documents received from the complainant. 4 TcHDIA

Hence, this Motion for Reconsideration filed on October 21, 2008, by respondent Valdez,

based on the following grounds:

I.RESPONDENT HAD ABSOLUTELY NO KNOWLEDGE THAT

COMPLAINANT HAD FILED CHARGES AGAINST HIM AND

THAT THERE WERE DISBARMENT PROCEEDINGS AND AN

INVESTIGATION CONDUCTED BY THE INTEGRATED BAR OF

THE PHILIPPINES.

II.HAD HE BEEN GIVEN AN OPPORTUNITY TO BE HEARD, HE

WOULD HAVE PRESENTED STRONG, VALID AND

MERITORIOUS DEFENSES TO THE CHARGES LEVELLED

AGAINST HIM WHICH DEFENSES, CORRECTLY

APPRECIATED, WOULD HAVE TOTALLY EXONERATED

HIM. 5 aCcEHS

We deny the Motion for Reconsideration.

On the first issue, the respondent argues that the IBP has no jurisdiction over him since proof of

service of the initiatory pleading to the defendant is a jurisdictional requirement. 6 He states in

his Motion for Reconsideration that "he had no inkling whatsoever of the existence of the

disbarment case filed by the complainant". 7 He asserts that, in September 2006, he "abruptly

abandoned his office at Suite 402 Pacific Irvine Bldg., 2746 Zenaida St., at Makati City

following persistent and serious threats to his physical safety and security . . . ." 8 On the advice

of his close friends and clients to "lie low" and "make himself 'scarce'," 9 he stayed for a few

days in his residence at Imus, Cavite then relocated to Malaybalay City, Bukidnon. 10 He has

been holding office and residing in Bukidnon since then, and he only found out about the

decision from a colleague in Bukidnon who read the decision from the Court's website.

He claims that because he "abruptly abandoned" 11 his Makati office on September 2006, he

was not able to receive the demand letter 12 sent by the complainant. 13He was also not able to

receive any of the notices, orders and other papers pertaining to the disbarment proceedings

because at the time these were sent to his Makati office address, he was already holding office

in Bukidnon.

Complainant Overgaard filed an "Opposition/Comment to the Motion for

Reconsideration" 14 on December 9, 2008. He counters that respondent Valdez was duly

notified of the charge against him and of all the proceedings at the IBP, 15 since all notices

were sent to "Suite 402 Pacific Irvine Bldg., No. 2746 Zenaida St., Makati City, Metro Manila,

Philippines", 16 which is the respondent's office address indicated in his letterhead and made

known to the complainant and to the public. He sent the respondent a letter dated November 27,

2006, demanding that the latter return the documents and the P900,000.00 paid to him in

relation to the case. The demand letter was sent to the same address and was received by one

whose signature was "RRJ", as noted in the Registry Return Receipt. 17

Complainant Overgaard argues that respondent cannot claim ignorance of the disbarment case

against him, since this is a natural offshoot of a wrongful act. 18Complainant Overgaard points

out that when respondent Valdez left for Bukidnon, he already knew that the complainant was

looking for him and demanding the return of the money and documents he received from the

complainant. 19 The November 27, 2006 demand letter further contained a warning that "[i]f

[the respondent] will not return the documents and the money within ten (10) days from receipt

hereof, [the complainant] will bring the matter to the proper authorities/forum for the redress of

[his] grievances". 20 The complainant denies that he or his business partners know of

respondent's whereabouts, and he argues that it is the respondent's duty as his counsel to adopt

and strictly maintain a system that efficiently takes into account all notices sent to him. 21

We hold that respondent was given reasonable notice of the complaint for disbarment against

him. aESHDA

A copy of the Complaint as well as the Order 22 to answer the Complaint was sent by the IBP

Commission on Bar Discipline to the respondent's Makati office address, and it was duly

received by the respondent. The Registry Return Receipt 23 shows that it was also received by

one "RRJ", whose signature appears on the space for the signature of the addressee's agent. The

respondent cannot claim lack of knowledge of the complaint for disbarment against him when

the Complaint and the Order for him to submit an Answer were duly received by his agent at

his Makati law office. Succeeding notices in connection with the disbarment proceedings were

also sent to the respondent's Makati law office. He cannot escape liability for his misdeeds by

feigning ignorance of the disbarment case, since the notices in connection with the proceedings

were sent to his office address made known to the public and properly received by his agent.

Respondent Valdez was given full opportunity, upon reasonable notice, to answer the charges

against him and to present evidence on his behalf. The IBP Commission on Bar Discipline was

correct in proceeding with the investigation ex parte, because it was due to the respondent's

own fault and negligence that he was not able to submit an answer to the Complaint and

participate in the investigation. Rule 138, Section 30 provides that an attorney should be heard

before he is removed or suspended; but if, upon reasonable notice, an attorney fails to appear

and answer the accusations against him, the matter may be dealt with ex parte. Rule 138,

Section 30 states: SaHIEA

SEC. 30.Attorney to be heard before removal or suspension. — No attorney

shall be removed or suspended from the practice of his profession, until he has

had full opportunity upon reasonable notice to answer the charges against him,

to produce witnesses in his own behalf, and to be heard by himself or

counsel. But if upon reasonable notice he fails to appear and answer the

accusation, the court may proceed to determine the matter ex parte. (Emphasis

supplied.)

The respondent's feeble excuse that he was no longer holding office at his Makati office

address at the time the Order of the IBP Commission on Bar Discipline was sent to him is

unacceptable. Ordinary prudence would have guarded against his alleged failure to receive the

notices. All notices to the respondent were sent to his Makati office address, which was the

address made known to the public and to the complainant. This is even the address printed on

the letterhead of the Retainer Agreement between the complainant and the respondent. And

although the respondent claims that he had to "make himself 'scarce'" 24 due to threats to his

life and safety, this does not mean that he avoids the responsibility of taking account of his

mail. The respondent owes it to himself and to his clients to adopt a system whereby he would

be able to receive mail sent to his law office during his absence. Assuming that circumstances

would justify the respondent's abrupt abandonment25 of his Makati office, it absolutely does

not give him the license to abandon his clients as well. AaCEDS

This brings us to the second issue: whether or not respondent committed multiple violations of

the Code of Professional Responsibility and thus his disbarment should be sustained.

The respondent argues that he did not abandon his client. He denies that he refused to perform

any of his obligations under the contract for legal services between himself and the

complainant. He claims that he gave the complainant legal advice, and that he searched for and

interviewed witnesses in relation to the cases he was handling for the complainant. 26 He also

denies that he ignored the complainant's requests for a report of the cases entrusted to his care.

He claims that he gave periodic status reports on the result of his work, that he returned the

documents in connection with the case, and that he rendered an accounting of the money that

he actually received. aSDCIE

We find that respondent's disbarment should be upheld. From the facts of the case, and based

on his own admissions, it is evident that he has committed multiple violations of the Code of

Professional Responsibility.

In abruptly abandoning his law office without advising his client and without making sure that

the cases he was handling for his client were properly attended to during his absence, and

without making arrangements whereby he would receive important mail, the respondent is

clearly guilty of gross negligence. A lawyer cannot simply disappear and abandon his clients

and then rely on the convenient excuse that there were threats to his safety. Even assuming that

there were serious threats to his person, this did not give him the permission to desert his client

and leave the cases entrusted to his care hanging. He should have at least exercised reasonable

and ordinary care and diligence by taking steps to ensure that the cases he was handling were

attended to and that his client's interest was safeguarded. If it was not possible for him to handle

the cases entrusted to his care, he should have informed the complainant of his predicament and

asked that he be allowed to withdraw from the case to enable the client to engage the services

of another counsel who could properly represent him. 27 Deplorably, the respondent just

disappeared, deserted his client and forgot about the cases entrusted to his care, to the

complainant's damage and prejudice. aADSIc

The respondent denies that he did not do anything in connection with the cases included in the

Retainer Agreement. He asserts that he reviewed the documents in relation to the case and gave

the complainant important advice. He claims that he travelled to Bato, Camarines Norte to

negotiate for an amicable settlement with the members of the family of the adverse party in one

of the cases filed against the complainant. 28 He also went to San Carlos City (Negros

Oriental), Antipolo City, and other parts of Metro Manila to interview and search for witnesses

for the cases that he was handling for the complainant. 29

The respondent's disbarment is not anchored on his failure to do anything in relation the cases

entrusted to his care, but on his abandonment of his client. He will not be absolved from

liability on the basis alone of these inconsequential acts which he claims to have accomplished

because the glaring fact remains that he has failed to perform his essential obligations to his

client, to the courts and to society. As the complainant's lawyer, the respondent is expected to

serve his client with competence and diligence. 30 This includes not merely reviewing the

cases entrusted to his care and giving the complainant sound legal advice, but also properly

representing his client in court, attending scheduled hearings, preparing and filing required

pleadings, prosecuting the cases entrusted to his care with reasonable dispatch, and urging their

termination without waiting for his client or the court to prod him to do so. He should not idly

sit by and leave the rights of his client in a state of uncertainty.

The respondent's acts and omissions were not just a case of inaction, but they amount to

deceitful conduct and are contrary to good morals. After assuring the complainant that he

would protect the latter's interest and attend to the cases included in the Retainer Agreement, he

abandoned his client. It was only after the complainant's own inquiry that he discovered that the

respondent never appeared in court to represent the complainant in the cases filed against him,

so much so that he had no knowledge that warrants of arrest were already issued against him.

The respondent also failed to enter his appearance in the civil case for Mandamus,Injunction

and Damages that the complainant filed. After receiving the complete amount of legal fees,

giving the complainant initial legal advice, and interviewing some witnesses, the respondent

just disappeared and the complainant never heard from him despite his continued efforts to

contact the respondent. CTIDcA

The complainant put his trust in the respondent with full faith that the latter would exert his

best effort and ability in the prosecution and defense of his client's cause. But instead of

devotion to his client's cause, the respondent grossly neglected his duties to his client. After all

the representations he made to the complainant and after receipt of the full amount of the legal

fees, he absconded from his responsibilities and betrayed his client's trust. There is no excuse

for this, and his gross negligence and appalling indifference is unforgiveable. *

On the Court's finding that the respondent refused to return the money he received from the

complainant despite written and verbal demands and was not able to give a single report

regarding the status of the cases, the respondent claims that he returned the documents to the

complainant's representative in the middle of July 2006, 31 and that he also gave an accounting

of the money he received sometime immediately after it was demanded from him on July 25 or

26, 2006. The respondent counters that although he initially received the amount of

P900,000.00, he gave P300,000.00 to two intelligence operatives for locating witnesses in favor

of the complainant in Antipolo City and other parts of Metro Manila. 32 He claims that only

P600,000.00 was actually received by him, and from this amount he drew all expenses in

connection with the complainant's cases. The respondent further avers that he made an

accounting of the P600,000.00 received by him and offered to return P250,000.00, but it was

the complainant's business partner who refused to accept the P250,000.00 and insisted on the

payment of the whole amount. 33 aIHCSA

The complainant declared that he did not receive the documents being demanded from the

respondent, nor did he receive an accounting of the money he paid to the respondent. He stated

in his "Opposition/Comment to the Motion for Reconsideration" that the respondent's empty

claims — that he already returned the documents sometime in the middle of July 2006 and that

he rendered an accounting of the money paid to him immediately after July 25 or 26, 2006 —

are refuted by the demand letter sent by the complainant on November 27, 2006, four months

after the alleged time of return.

We agree with the complainant.

If the respondent had indeed returned the documents sometime in the middle of July 2006, he

would have presented a receipt to prove such turnover of documents. And if the respondent had

indeed rendered an accounting of the money that was paid to him, he would have attached a

received copy of the accounting to his Motion for Reconsideration. But he failed to do both.

There was no proof presented. We cannot rely on his bare allegation, especially when the

complainant demanded the return of the documents months after they were allegedly

returned. IDcAHT

Neither are we persuaded by the respondent's explanation as to how and where the P900,000.00

was spent. He claims that out of the P900,000.00, he only received P600,000.00 because he

paid P300,000.00 to two intelligence operatives. In paying the intelligence operatives, he stated

in his Motion for Reconsideration that he deposited P100,000.00 to the Land Bank account of

one Investigator Operative Collado (Collado) sometime in the second week of January 2006,

and that the rest of the P200,000.00 was personally handed by him to Collado in the last week

of January 2006 at McDonald's restaurant at the corner of Pasong Tamo and J.P. Rizal Streets

at Makati City. 34

Such an account offered by the respondent is insufficient to free him from liability. If the

respondent indeed paid P300,000.00 to two intelligence operatives with the knowledge of the

complainant, he would have presented a receipt issued by Collado, and he would have also

presented a validated deposit slip or certification as proof that he deposited the amount he

claims to have deposited to Collado's account. His failure to attach proof of payment of the

P300,000.00 to the intelligence operatives does not only make his defense flawed, it also

highlights his incompetence in handling the money he received from the client.

It is a lawyer's duty to properly account for the money he received from the client. 35 If indeed

the respondent told the client that he would pay P300,000.00 to two intelligence operatives, as

he claims in his Motion for Reconsideration, he should have held this money in trust, and he

was under an obligation to make an accounting. It was his duty to secure a receipt for the

payment of this amount on behalf of his client. But he failed to present any receipt or

certification from Collado that the payment was received. Since the respondent was not able

either to present an accounting of the P900,000.00 paid to him upon the complainant's demand,

or to provide a sufficient and plausible explanation for where such amount was spent, he must

immediately return the same.

For these reasons, and those previously stated in the September 30, 2008 Decision of this

Court, we find that respondent Valdez has committed multiple violations of the canons of the

Code of Professional Responsibility. He has failed to observe the fundamental duties of honesty

and good faith and, thus, we sustain his disbarment.

We must emphasize that the right to practice law is not a natural or constitutional right but is in

the nature of a privilege or franchise, 36 and it may be extended or withheld by this Court in the

exercise of its sound discretion. As guardian of the legal profession, this Court has ultimate

disciplinary power over members of the Bar in order to ensure that the highest standards of

competence and of honesty and fair dealing are maintained. We find that the respondent has

fallen below such exacting standard and is unworthy of the privilege to practice law.

IN VIEW WHEREOF, the Motion for Reconsideration is DENIED. This Court's en

banc decision in Administrative Case No. 7902 dated September 30, 2008, entitledTorben B.

Overgaard v. Atty. Godwin R. Valdez, is AFFIRMED.

SO ORDERED.