Licuanan vs. Melo

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 2361 February 9, 1989

LEONILA J. LICUANAN, complainant, vs.ATTY. MANUEL L. MELO, respondent.

R E S O L U T I O N

 

PER CURIAM:

An affidavit-complaint, dated November 11, 1981, was filed by Leonila J. Licuanan with the Office of the Court Administrator on 5 February 1982 against respondent, Atty. Manuel L. Melo, for breach of professional ethics, alleging that respondent, who was her counsel in an ejectment case filed against her tenant, failed to remit to her the rentals collected by respondent on different dates over a twelve-month period, much less did he report to her the receipt of said amounts. It was only after approximately a year from actual receipt that respondent turned over his collections to complainant after the latter, through another counsel, acquired knowledge of the payment and had demanded the same.

In his Comment on the complaint, respondent admitted having received the payment of rentals from complainant's tenant, Aida Pineda, as alleged in the complaint, but explained that he kept this matter from the complainant for the purpose of surprising her with his success in collecting the rentals.

We forwarded the case to the Office of the Solicitor General, for investigation, report and recommendation. Hearings were conducted and the parties presented their respective evidence.

After investigation, the Solicitor General submitted the following Findings and Recommendation:

Findings:

The issue to be resolved is whether there was unreasonable delay on the part of the respondent in accounting for the funds collected by him for his former client, the complainant herein, for which unprofessional conduct respondent should be disciplined.

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. Under paragraph 11 of the Canons of Legal Ethics, he is obligated to report promptly the money of client that has come to his possession and should not commingle it with his private property or use it for his personal purpose without his client's consent viz:

Money of the client or other trust property coming into the possession of the lawyer should be reported promptly, and except with the client's know

and consent should not be commingled with his private or be used by him.

And paragraph 32 of the Canons of Legal Ethics further requires a lawyer to maintain a reputation for honesty and fidelity to private trust:

... But above all, a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.

In the instant case, respondent failed to observe his oath of office. It is undisputed that the relation of attorney and client existed between Licuanan and Melo at the time the incident in question took place. The records disclose that on August 8, 1979, respondent, as Licuanan's attorney, obtained judgment in Licuanan's favor against Aida Pineda whereby the latter was directed by the City Court of Manila to pay Licuanan all her monthly rentals from October, 1978 and succeeding months thereafter.

When several months had elapsed without them hearing a word from Pineda, respondent decided to send her a letter on February 4, 1980, demanding that she pay the monthly rental of her apartment otherwise he will be constrained to take the necessary legal action against her to protect the interest of his client (Exhibit "A", p. 8, record). On February 11, 1980, Pineda yielded to the demand of Melo. She went to respondent's office and paid him P3,060.00 for which respondent gave her a receipt for the said amount representing her rental payments for October, 1978 to February, 1980 at the rate of P180.00 per month (Exh. "B", p. 9, Ibid.) At the end of March 31,1980, Pineda again went back to respondent and paid the rentals of her apartment for the months of March and April, 1980 in the sum of P360.00 (Exh. "C" p. 10, Ibid.). Not only that, respondent again received from Pineda on June 30, 1980 rental payments covering the months of May, June and July, 1980 in the total sum of P540.00 (Exh. "D" p. 11, Ibid.). And, on September 29, 1980, he received and issued Pineda a receipt for P540.00 covering rental payments for the months of August, September and October, 1980. (Exh. "E", Ibid.). After four months had elapsed, or on January 23, 1981, he collected again from Pineda the total sum of P720.00 covering the months of October, November, December, 1980 and January 1981 (Exh. "F", p. 12, Ibid.).

During the entire twelve-month period that respondent had been receiving the said rental payments of Pineda, he did not bother to inform or report to complainant about the said payments and instead unnecessarily retained the money. He allowed the money to accumulate for a year and kept complainant in the dark as to the progress of the case. He did not even attempt to tell her about the money that had come into his possession notwithstanding the fact that complainant used to call him and inquire regarding the case (pp. 14-15, tsn., Sept. 10, 1985).

It was only when Atty. Ponciano B. Jacinto, the new counsel retained by complainant, wrote respondent a letter on May 4, 1981, advising him to surrender the money to complainant that he accounted for it (Exh. "H", p. 15, Ibid.). But this was rather late because as early as April 27, 1981, complainant, not knowing that respondent had been receiving the rental payments of Pineda, instituted an administrative case against her (Aida Pineda) before the Chief of the Philippine Tuberculosis Society accusing her of "moral turpitude" arising from her alleged failure to pay the rent of her apartment as ordered by the City Court of Manila in Civil Case No. 037276 and claiming that she has ignored and refused to pay her just obligation (Exh. "G", p. 14, Ibid.).

This led therefore Pineda to bring an action against her (Licuanan) for damages before the then Court of First Instance of Manila, for she allegedly suffered mental anguish, besmirched reputation, wounded feelings and social humiliation arising from the unfounded administrative case Licuanan filed against her (Aida Pineda), since as borne out by the records, she had been paying her obligation religiously to the lawyer of Licuanan, herein respondent (pp. 48-52, record). Clearly, this unfortunate incident would not have happened had respondent been only true to his oath as a lawyer, i.e., to be honest and candid towards his client.

Thus, we find it hard to believe respondent's defense that he kept the money of complainant for a year merely because he wanted to surprise her with his success in collecting the rental payments from Pineda. On the contrary, it is very much discernible that he did not surrender immediately the money to complainant because he was using it for his own benefit. Common sense dictates that by unnecessarily withholding the money of complainant for such length of time, respondent deprived her of the use of the same. It is therefore too credulous to believe his explanation, which is flimsy and incredible Respondent's actuation casts doubt on his honesty and integrity. He must know that the "highly fiduciary" and "confidential relation" of attorney and client requires that the attorney should promptly account for all funds and property received or held by him for the client's benefit, and failure to do so constitutes professional misconduct, as succinctly held by the Honorable Supreme Court in the case of Fermina Legaspi Daroy, et al., vs. Atty. Ramon Chaves Legaspi, Adm. Case No. 936, July 25, 1975, 65 SCRA 304, to wit:

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client's consent. He should maintain a reputation for honesty and fidelity to private trust (Pars. 11 and 32, Canons of Legal Ethics).

Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them (Aya vs. Bigonia, 57 Phil. 8, 11).

xxx xxx xxx

A lawyer may be disbarred for any deceit, malpractice or other gross misconduct in his office as attorney or for any violation of the lawyer's oath (Ibid, sec. 27).

The relation between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting and confidential in character, requiring a high degree of fidelity and good faith (7 Am. Jur. 2d 105). In view of that special relationship, 'lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct. The fact that a lawyer has a lien for fees on money in his hands collected for his clients does not relieve him from the duty of promptly accounting for the funds received. (Emphasis supplied).

In fine, we are convinced that respondent is guilty of breach of trust reposed in him by his client. Not only has he degraded himself but as an unfaithful lawyer he has besmirched the fair name of an honorable profession (In re Paraiso, 41 Phil. 24, 25; In re David, 84 Phil. 627; Manaloto vs. Reyes, Adm. Case No. 503, October 29, 1965, 15 SCRA 131). By his deceitful conduct, he placed his client in jeopardy by becoming a defendant in a damage suit; thus, instead of being a help to his client, he became the cause of her

misery. He, therefore, deserves a severe punishment for it. (Aya vs. Bigornia, 57 Phil. 8, 11; In re Bamberger, April 17, 1924, 49 Phil. 962; Daroy, et al., vs. Atty. Ramon Chaves Legaspi, supra.)

Clearly, respondent is guilty of professional misconduct in the discharge of his duty as a lawyer.

RECOMMENDATION

WHEREFORE, we respectfully recommend that respondent be suspended from the practice of law for a period of not less than one (1) year, and that he be strongly admonished to strictly and faithfully observe his duties to his clients. (pp. 78-85, Rollo)

We find the foregoing findings well considered and adopt the same but differ with the recommendation.

The actuations of respondent in retaining for his personal benefit over a one-year period, the amount of P5, 220.00 received by him on behalf of his client, the complainant herein, depriving her of its use, and withholding information on the same despite inquiries made by her, is glaringly a breach of the Lawyer's Oath to which he swore observance, and an evident transgression of the Canons of Professional Ethics particularly:

11. DEALING WITH TRUST PROPERTY

The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

Money of the client or collected for the client of other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstance be commingled with his own or be used by him. *

Indeed, by his professional misconduct, respondent has breached the trust reposed in him by his client. He has shown himself unfit for the confidence and trust which should characterize an attorney-client relationship and the practice of law. By reason thereof complainant was compelled to file a groundless suit against her tenant for non-payment of rentals thereby exposing her to jeopardy by becoming a defendant in a damage suit filed by said tenant against her By force of circumstances, complainant was further compelled to engage the services of another counsel in order to recover the amount rightfully due her but which respondent had unjustifiedly withheld from her.

Respondent's unprofessional actuations considered, we are constrained to find him guilty of deceit, malpractice and gross misconduct in office. He has displayed lack of honesty and good moral character. He has violated his oath not to delay any man for money or malice, besmirched the name of an honorable profession and has proven himself unworthy of the trust reposed in him by law as an officer of the Court. He deserves the severest punishment.

WHEREFORE, consistent with the crying need to maintain the high traditions and standards of the legal profession and to preserve undiminished public faith in attorneys-at-law, the Court Resolved to DISBAR respondent, Atty. Manuel L. Melo, from the practice of law. His name is hereby ordered stricken from the Roll of Attorneys.

Copies of this Resolution shall be circulated to all Courts of the country and spread on the personal record of respondent Atty. Manuel L. Melo.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., took no part.

Footnotes

* Substantially reiterated in Rules 16.01. 16.02 and 16.03 of the (Code of Professional Responsibility promulgated by the Supreme Court on 21 June 1988.

Igual vs.Javier

[Syllabus]

THIRD DIVISION

[A.C. No. CBD-174. March 7, 1996]

GIOVANI M. IGUAL, complainant, vs. ATTY. ROLANDO S. JAVIER, respondent.

D E C I S I O N

PANGANIBAN, J.:

In the instant case, this Court has found occasion to again remind members of the Bar to observe honesty in their dealings with clients and the public alike, and fidelity to the cause entrusted to them.

This case stemmed from a Complaint-Affidavit filed by complainant with the Integrated Bar of the Philippines (IBP) on September 23, 1991 to initiate disbarment proceedings against the respondent, “for malpractice, deceit, dishonesty, (and) gross misconduct in his office as attorney and/or for violation of his lawyer’s oath x x x.”i[1] Respondent was accused of having unlawfully withheld and misappropriated complaint’s money in the amount of P7,000.00, allegedly paid by way of acceptance fee for a matter which respondent never performed any work on.

The IBP’s Committee on Bar Discipline, through its investigating Commissioner Vicente Q. Roxas, required respondent to answer the charges and thereafter held several hearings, during which the parties were able to present their respective witnesses and documentary evidence. After the parties had filed their respective formal offer of evidence as well as memoranda, the case was considered submitted for resolution. Subsequently, the commissioner rendered his Commissioner’s Report dated January 30, 1995, which became the basis for the Resolution passed by the IBP Board of Governors on February 18, 1995, which reads as follows:

“RESOLUTION NO. XI-95-288CBD Case No. 174

Giovani M. Igual vs.Atty. Rolando S. Javier

“RESOLVED to RECOMMEND to the Supreme Court that the respondent be SUSPENDED from the practice of law for ONE (1) month and restitution of the SEVEN THOUSAND PESOS (P7,000.00) acceptance fee.”

The Antecedent Facts

Inasmuch as the findings of fact made by Commissioner Roxas in his report are substantiated by the evidence on record, the same are herein adopted, to wit:

“The complaint dated September 23, 1991 alleges that complainant met respondent attorney thru complainant’s tennis partner, one Sergio Dorado, sometime April 1, 1991. Complainant asked Sergio Dorado to make it possible for complainant to meet respondent at the latter’s house regarding the possibility of hiring respondent to handle Civil Case No. 2 188-LRC No. 215, pending with the Regional Trial Court of Aklan. A decision favorable to complainant’s mother had just been rendered but this decision was appealed by the adverse party to the Court of Appeals, consolidated and docketed as CA-G.R. No. 32592 [1(a) Complaint-Affidavit]. Complainant said respondent is being hired because complainant’s mother wanted the appeal expedited.

That very night, ‘when Atty. Javier offered to collaborate in the appealed case’ [1(c) Complaint-Affidavit] because ‘Atty. Javier through sweet talk and pretense of influence to several justices of the Court of Appeals x x x that he could be of great help in expediting the speedy disposition of the case’ [1(b) Complaint-Affidavit] complainant gave respondent P10,000.00 which money he intended to buy a refrigerator with. Complainant alleged that he gave the money with the understanding that the money is for ‘safekeeping and as proof, according to him, x x x promising to return my money should my mother and her lawyer Atty. Ibadlit disagree in his collaborating in the case’ [1(c) Complaint-Affidavit] - covered by receipt which provides: ‘Received the amount of Ten Thousand (P 10,000.00) Pesos from Mr. Giovani M. Igual as Legal Fees and Filing Fees (Civil Case No. 2188). April 1, 1991 signed by respondent Atty. Rolando S. Javier. [Exhibit A and Annex A to Complaint-Affidavit].

Respondent thus entered his formal appearance ‘as collaborating counsel’ dated April 3, 1991 [Annex B to Complaint-Affidavit]. Then complainant wrote respondent on June 27, 1991 stating that he is demanding P7,000.00 balance since P3,000.00 had already been refunded by respondent. [Exhibit B and Annex C, Complaint-Affidavit].

Instead of filing an Answer, respondent filed an ‘Affidavit’ dated April 20, 1992, alleging that: he ‘gave back the P3,000.00 not as a settlement’ because complainant said ‘his child was hospitalized and gravely ill’ [par. 22, Affidavit-Javier] and that the reason why complainant wanted a refund of the remaining P7,000.00 is because ‘it is not the fault of the affiant if Giovani M. Igual had quarreled with his mother or his brother or his sister as to the reimbursement or sharing of the Legal Fees - because the truth was that Igual wanted to secure double or bigger reimbursement.’ [par. 30, Affidavit-Javier]. Complainant denied the allegation of respondent in a Reply-Affidavit dated May 21, 1992.

Respondent presented Exhibit 4 which is certified xerox copy of the Decision dated March 19, 1991 in Civil Case No. 2188 and LRC 215, Regional Trial Court of Aklan, Province.

Respondent’s declared purpose in the Formal Offer of Evidence was ‘to show that Atty. Rolando S. Javier had accepted the appealed cases and had obtained pertinent records or pleadings to work on it’ [page 2 number (4) exhibit, Formal Offer dated February 6, 1993].

From the evidence, however, the decision is dated February 25, 1991 and the March 19, 1991 is the date of the RTC’s Order stating that the appeal had been perfected.

Complainant testified that he went back on April 3, 1991, to claim back the P 10,000.00 given last April 1, 1991. [TSN, page 15, July 8, 1992, Giovani Igual]. Respondent also reimbursed the P3,000.00 two (2) months after. [TSN, page 19, July 8, 1992].

Respondent testified that he entered as collaborating counsel only and was promised P20,000.00 if he wins the case and:

‘A: x x x as collaborating counsel I am going to to (sic) prepare the appeal brief and that I required Mr. Giovani Igual to get the consent of his brothers, sisters and mother.’ [TSN, pages 12-13, September 16, 1992, Atty. Javier]. .

Respondent further testified that:

‘A: Now as to the agreement as to the fees, about few days after our agreement he returned and gave me the money. The agreement is that that is my legal fee. That is an acceptance fee. I do not know where he got that but that is what he paid me. [TSN, page 15, Sept. 16, 1992, Atty. Javier].

The Commission confronted respondent with the question:

‘Q: How about the copy of the appeal? (sic)’ [TSN, page 27, September 16, 1992, Atty. Javier]

‘A: It was not finished, Your Honor, because we quarreled. When I am preparing the brief we quarreled already.’ [TSN, page 27, September 16, 1992, Atty. Javier].

Then again:

‘A: This is what I promised him. I told him that upon the arrival of all pertinent records in the Court of Appeals, I am going to prepare the brief but on the basis of the paper that I have in my possession(.) I can merely be guided by the decision.’ [TSN, page 34, September 16, 1992, Atty. Javier]

‘Question: Did you not ascertain from them when did they receive the appellant’s brief because for purposes of prescription there is the reglementary period within which to file appellee’s brief?

‘Answer: I did not ascertain anymore because at that time my thinking was that I have to study first the case.

‘Question: Considering that this is the filing of appellee’s brief, is there a need to pay filing fee for appellee’s brief?

‘Answer: If what you inquired from (sic) is the filing of an appellee’s brief, there is no such thing. But if you see, in filing briefs in the appealed cases there are usually motions for reconsideration, supplement of the appellee’s brief and if you look on the Rules of Court, even the motion for reconsideration is payable. Even a motion for reconsideration on the appealed cases has to be paid. There is a fee so I put there the legal fees or the filing fees but that does not necessarily mean that I am referring to a filing fee of an appealed brief. Take note, sir, that in the rule of filing fees even motions for reconsideration or supplement to the motion for reconsideration there must be a payment of fees. [TSN, pages 39-40, September 16, 1992, Cross Examination of Atty. Javier]

‘Q: And only you did not specify that this is in payment for your professional services, is that correct?

‘A: Yes that is true. It is a matter of style. There are lawyers who specified transportation, fees, etc.

‘Q: Did you not also issue a receipt that this is only a partial payment?

‘A: I did not. What I did, Your Honor, is to issue a receipt for P 10,000.00 as my legal fees and filing fees in a package deal basis with an unwritten agreement that if I will win the case on the appeal on the basis of my appellee’s brief in a gentleman’s agreement he will give me additional P 10,000.00. It is not written.’ [TSN pages 44 to 45, September 16, 1992, Atty. Javier’s cross examination] (italics supplied)

Commissioner’s Evaluation

Commissioner Roxas then rendered the following analysis and evaluation of the evidenée presented:

This would have been a difficult situation had there been no written receipt of payment of fees. In a lawyer-client relationship, what is governing is the written receipt dated April 1, 1991. Respondent admits he was hired to prepare an appellee’s brief Respondent admits he did not prepare said appellee’s brief because he and his clients immediately quarreled after hiring. If that was the situation from the very beginning - that respondent quarreled with

his clients immediately within two days after April 1, 1991 - respondent knew all along he would not get his papers of the case and he knew all along he will not make the appellee’s brief.

In such situations, if indeed the lawyer cannot agree with the client, or, as in this case, the lawyer is quarreling with his client, there are several options for the lawyer to exit from the relationship instead of merely maintaining a cold war of doing nothing in the case, such as securing a written and signed notice of withdrawal from the case, or, manifesting to the court the circumstances why he can no longer proceed in representing his client. Otherwise, a lawyer’s act will be interpreted as abandonment.

More than the mere presumption that respondent abandoned his client if he does not render any service to the case he is handling, there are other positive indications of why such presumptions may altogether be confirmed as intentional:

FIRST, respondent alleged that he was angry at complainant because he resented what he testified to as the attitude of the clients in calling him names in the neighborhood for failing to return the money.

SECOND, despite the fact the April 1, 1991 receipt specified that the money would be for legal fees and filing fees, yet none of the two materialized.

Respondent claims the money given him is an acceptance fee. But, as known by respondent, ambiguities in contracts prepared by him, are construed against him, and thus, if the receipt does not specify that it is such an acceptance fee, it cannot be treated as such. When it comes to fees, the amount and purpose must be clearly stated. Otherwise said contracts are interpreted against the lawyer who is presumed to know better on such legal matters as against his client, as in this case, who is not a lawyer.

The crucial evidence against respondent is his own admissions that he never really performed any work in preparing or submitting any appellee’s brief.

Respondent claims that he was forced to such a situation because of the attitude of the client which compelled attorney to maintain his ground in refusing to reimburse money to someone who continues to malign his character - which is the reason why respondent had acted as he did. This complainant did not refute.

Respondent should have set aside his personal feelings and should have pursued diligently the cause of his client within the bounds of reason, justice, and fair play. Public interest requires that an attorney exert his best efforts and ability in the prosecution or defense of his client’s cause [Cantiller vs. Potenciano, 180 SCRA 246]. It has been held that such neglect of respondent, his failure to exercise due diligence or his abandonment of client’s cause, renders him unworthy of the trust of his client [Ibid]. The Supreme Court has pointed out that lawyers have a higher responsibility because they are an indispensable part of the whole system of administering justice in this jurisdiction [Ibid].

Respondent’s attitude of blaming his client for the latter’s allegedly maligning him is not being candid with the Commission. Respondent must be reminded that candor towards the court is a cardinal requirement of a practicing lawyer [Paluwagan ng Bayan Savings Bank vs. King, 172 SCRA 60].

For it has been held that a lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society [Zaldivar vs. Gonzales, 166 SCRA 316], and not contribute to propagating more disputes.” (italics supplied)

Commissioner Roxas then made the following recommendation, to wit:

“WHEREFORE, it is respectfully recommended to the Board of Governors, that the penalty of suspension from the practice of law for a period of THREE (3) MONTHS be meted on respondent in view of the circumstances.”

which recommended penalty, as indicated above, was reduced by the IBP Board of Governors to a suspension of one (1) month, but with the addition that respondent be required to restitute the P7,000.00 (balance) he received from complainant.

The Court’s Ruling

We are in agreement with Commissioner Roxas’ findings and conclusions, as -approved by the IBP Board of Governors. In addition, we note that respondent not only unjustifiably refused to return the complainant’s money upon demand, but he stubbornly persisted in clinging to what was not his and to which he absolutely had no right. Such lack of delicadeza and absence of integrity was further highlighted by respondent’s half-baked excuses, hoary pretenses and blatant lies in his testimony before the IBP Committee on Bar Discipline represented by Commissioner Roxas. The sad thing is, he was not fooling anyone at all. He only ended up making a fool of himself in the process.

Respondent, like all other members of the Bar, was and is expected to always live up to the standards embodied in the Code of Professional Responsibility, particularly the following Canons, viz:

“CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client.

“CANON 16- A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

“CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.”

“CANON 20 - A lawyer shall charge only fair and reasonable fees.”

for the relationship between an attorney and his client is highly fiduciary in nature and demands utmost fidelity and good faith.

It goes without saying that respondent, by his deceitful actuations constituting violations of the Code of Professional Responsibility, must be subjected to disciplinary measures for his own good, as well as for the good of the entire membership of the Bar as a whole.

WHEREFORE, in light of the foregoing, and consistent with the recommendation of the Integrated Bar of the Philippines, respondent ROLANDO S. JAVIER is hereby SUSPENDED from the practice of law for a period of ONE (1) MONTH, effective upon notice hereof, and ORDERED to restitute to the complainant the amount of SEVEN THOUSAND PESOS (P7,000.00) within thirty (30) days from notice. Let copies of this Decision be spread upon his record in the Bar Confidant’s Office and furnished the Integrated Bar of the Philippines.

SO ORDERED.

Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Francisco, JJ. concur.

i

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

A.M. No. 249 November 21, 1978

TOMAS ALCORIZA, complaint, vs.ATTY. ALBERTO LUMAKANG and ATTY. PABLO SALAZAR, respondents.

 

BARREDO, J.:

Administrative complaint for disciplinary action against Attys. Pablo Salazar and Alberto Lumakang. Respondents were required to answer and after they filed their answers, the case was referred to the Solicitor General for investigation and recommendation. The Solicitor General has submitted the following report:

REPORT AND RECOMMENDATION

This case was referred to the Office of the Solicitor General, for investigation, report and recommendation. Since the respondents were residents of Davao City, the case was, therefore, referred in turn by this Office to the City Attorney of Davao City, for investigation and report. In a letter dated March 14, 1957, City Attorneys A.L. Noel submitted the report of then special counsel, now Fiscal Leo D. Medialdea, which he approved and adopted as his own, the original of which, together with the original records of the case, is missing in our files due to the retirement of the Solicitor then assigned to the case (Sol. Adolfo Brillantes), hence only a duplicate original of said letter, together with a true copy of the original records of this case, is hereto attached. For convenience, the said report is quoted as follows:

xxx xxx xxx

After going over the records of the case together with the transcript of stenographic notes marked as Annex 'A', it appears that the whole case emanated from the decision of the Municipal Court of Davao City in Civil Case No. 1845 for sum of money, between one Juana V. Antonio, et al., plaintiffs, vs. Tomas Alcoriza, defendant, ordering the defendant to pay the plaintiffs the sum of P251.50, plus the legal rate of interest beginning the date of the filing of the complaint until the date of complete payment. The defendant is also ordered to pay an amount equivalent to 25% of the amount due, in the concept of attorney's fees, and the legal cost of the suit. It also appears in the decision that the trial was conducted in the absence of the defendant and or his counsels despite the fact that they have been duly notified.

Atty. Alberto Lumakang, one of the respondents in Administrative Case No. 249, explains his failure to appear in the trial of Civil Case No. 1845, wherein he appears as one of the attorneys on record as follows:

Early in the morning as usual as I Used to, I reported to the office at 7:30 believing that Tomas Alcoriza would come to the office. I waited for him until 9:00. I know that the hearing of Judge Hofileña will be 9:00 and that as I said if he will not appear in my office I will not appear for him as I would be going there without any preparation, so that on that day though I was jittery I did not go to the court. I stayed in the office waiting for Alcoriza.' (Transcript of the stenographic notes. T.S.N. p. 28, Annex "A".)

It appears that the reason of Atty. Lumakang for his failure to appear in representation of his client, Tomas Alcoriza, in the trial of his case on October 27, 1955, is not wholly laudable. The undersigned believes that although Atty. Lumakang was not prepared to enter into trial on that day, still he could do things to protect the interest of his client by appearing for him in court. However, it is not considered that this inaction of Atty, Lumakang would constitute so serious a ground as to warrant disciplinary action in view of the lack of interest which his client has shown in the premises. Instead, Atty. Lumakang for his failure to appear should be reprimanded for his inaction as it would tend to diminish trust and confidence which the public is supposed to repose in the office of a lawyer. In order to be free from any complaint from his client he should have appeared on October 27, 1955 primarily to protect the interest of his client and secondarily to explain to the court the predicament he was in.

Respondent Pablo Salazar should be exonerated of charges preferred against him by Tomas Alcoriza, because the records of civil Case No. 1845 show that Atty. Alberto Lumakang took over from him the active handling of the case since August 20, 1955 until Ocotber 27, 1955, date of rendition of judgment giving rise to this Administrative Case No. 249.

The undersigned concur in toto with the foregoing report and r recommendation, the same being justified by the evidence adduced at the hearing.

RECOMMENDATION

IN VIEW OF THE FOREGOING, the undersigned respectfully recommends that Atty. Alberto Lumakang be reprimanded as above-indicated and Atty. Pablo Salazar be exonerated of the charges filed against him. (Pp. 59-61, Record.)

Required to comment on the foregoing report by Our resolution of September 2, 1964, Atty. Lumakang explained that:

... The respondent asked Tomas Alcoriza why he did not go to the office or to the Court to attend to the trial of his case, Tomas Alcoriza merely answered that he is busy. The respondent told Tomas Alcoriza that the Judge has become impatient because of the many postponement so that an order was issued giving you last postponement and that if wyou will be absent again on the day of the trial the Court will proceed to try the case ex parte. Tomas Alcoriza assured the respondent that he will go to the office and he and the respondent will go to Court together on the day of the trial, and in parting the respondent told Tomas Alcoriza that if you will not come to the office on teh date of the trial then the respondent will not appear in Court as his appearance would only be useless.

The respondent began to suspect that the defendant Tomas Alcoriza has already lost his interest in the case aforesaid because of his refusal to attend to the trial every time the case is called for hearing. This suspicion came true because on the date set for hearing of his case in accordance with the provision of the order of last postponement, Tomas Alcoriza did not appear at the office of the respondent neither to the Court. Such being the case it is the honest belief of the respondent that a lawyer cannot be more interested in his client's case than the client himself. So, on the day of the hearing the respondent did not go to the court anymore because there was nothing or no interest at all to be protected. The defendant, now complainant, having lost interest or have show lack of interest in his case in the Municipal Court, therefore, the

respondent has every reason not to go to the Court because the respondent could not be expected to be more interested in the case than Tomas Alcoriza himself. The lack of interest or loss of interest of Tomas Alcoriza in his case was shown in the findings of the City Fiscal of Davao which findings was also adopted by the Solicitor General in his report and recommendation, quote:

However, it is not considered that this inaction of Atty. Lumakang would constitute so serious a ground as to warrant disciplinary action in view of the lack of interst which his client has shown in the premises. (emphasis supplied). (Pp. 64-65, Record.)

When the case was set for hearing, Atty. Lumakang waived oral argument, hence the case was deemed submitted for decision.

We have reviewed the record and We find the report and recommendation of the Solicitor General to be in order and amply justified by the circumstances on record.

WHEREFORE, the instant administrative case is dismissed insofar as Atty. Pablo Salazar is concerned, and Atty. Alberto Lumakang is hereby reprimanded and admonished to be more careful in attending to the cases of his clients so as to avoid any similar incident as that complained of. Let this decision be entered in the respective records of each of the respondents.

Fernando (Chairman), Antonio, Aquino, Concepcion, Jr. and Santos, JJ, concur.

SECOND DIVISION

[G.R. No. 127064. August 31, 1999]

FIVE STAR BUS COMPANY INC., and IGNACIO TORRES, petitioners, vs. COURT OF APPEALS, JUDGE JAIME F. BAUTISTA, RTC-Br. 75, Valenzuela, Metro Manila and SAMUEL KING SAGARAL II, respondents.

D E C I S I O N

BELLOSILLO, J.:

The threshold issue in this petition for review on certiorari is whether the Court of Appeals can summarily dismiss a petition on the ground that the certification on non-forum shopping required by Supreme Court Circular No. 28-91 was signed by counsel and not by petitioners themselves.

On 9 November 1991, at around 11:00 o’clock in the evening, along the MacArthur Highway in Valenzuela, Metro Manila, the Suzuki Supercarry Mini-Van driven by private respondent Samuel King Sagaral II collided with a passenger bus owned and operated by petitioner Five Star Bus Company and driven by co-petitioner Ignacio Torres.[1]

On 1 April 1992 private respondent Sagaral filed a civil action for damages against petitioners and the case was assigned to Branch 171 of the Valenzuela Regional Trial Court and docketed as Civil Case No. 3812-V-92.

When amicable settlement failed, trial ensued with private respondent Sagaral (plaintiff in the court a quo) initially presenting his evidence. Several years passed and on 26 December 1996 Sagaral finally rested his case.[2] On 12 March 1996 the trial court ordered petitioners herein (defendants in the court a quo) to present their evidence on 25 April 1996 and 9 May 1996.[3]

The presentation of evidence by petitioners was snagged by several postponements. The first was when Presiding Judge Adriano R. Osorio reset the 25 April 1996 hearing to 9 May 1996 as he had to go on forced vacation leave from 23 April 1996 to 25 April 1996.[4] But during the 9 May 1996 hearing, petitioner Ignacio Torres failed to appear prompting the lower court to cancel the hearing. According to petitioners, Torres was then detained in jail due to a separate pending criminal case filed against him by Sagaral before Br. 172 of the RTC of Valenzuela. Petitioners further explained that Torres could not post bail earlier for his provisional liberty since no notice was sent to him regarding the criminal complaint.[5]

On 4 June 1996 Judge Osorio ordered the civil case to be unloaded in view of his court’s designation as a permanent special court to exclusively try heinous crimes under RA 7659.[6] On 17 June 1996 the case was re-raffled to Br. 75 of the same RTC, this time under Judge Jaime F. Bautista who immediately scheduled a hearing for the initial presentation of petitioners' evidence on 8 August 1996.[7] Nonetheless on 9 July 1996 petitioners filed a motion to reset the hearing scheduled on 8 August 1996 to 15 August 1996 citing as reason their counsel’s conflict of schedule.[8]

It seemed however that even prior to the scheduled hearing of 8 August 1996, former Presiding Judge Osorio had already set a hearing for 2 July 1996 and 16 July 1996. But instead of conducting a hearing on said dates, Judge Bautista issued an order on 2 July 1996, thus -

It appearing from the records that this case had been previously set by Branch 171 today and July 16, 1996 and considering the Urgent Motion to Reset filed by the defendants thru counsel, the hearing set for today is hereby cancelled and is reset to July 16, 1996 as previously scheduled and August 8, 1996 both at 8:30 a.m. x x x x[9]

When the case was called for hearing on 16 July 1996, counsel for petitioners was not present. In fact he arrived twenty (20) minutes late. Thus, upon motion of respondent Sagaral, the trial court issued the disputed Order-

There being no certainty as to what time defendants’ counsel would be in court, and upon manifestation of plaintiff’s counsel that lawyer should be aware of his time x x x as prayed for, the defendants’ right to present their evidence is deemed waived and the case is now submitted for decision x x x x (underscoring supplied).[10]

Petitioners forthwith filed a motion for reconsideration of the above-mentioned Order arguing that the right to be heard was a basic tenet guaranteed by the Constitution which the courts could not impinge upon in the absence of any justifying reason to do so. They also blamed the heavy traffic for their lawyer's tardiness.

To simplify the proceedings due to the various motions filed by petitioners, Judge Bautista cancelled the 8 August 1996 hearing and reset it to 20 August 1996. He also set for hearing petitioner's motion for reconsideration on 20 August 1996.[11]

However, as if trying to test the patience of the trial court, petitioners once again filed on 5 August 1996 an Urgent Motion to Reset the 20 August 1996 hearing. Their counsel pleaded that he could not make it on such date because he had previously committed himself to appear before the Antipolo Regional Trial Court. He prayed that the hearing be moved to 2 September 1996.[12]

The hearing set for 20 August 1996 was cancelled[13] and the trial court on that day issued instead its Order denying petitioners' motion for reconsideration of its Order dated 16 July 1996 which considered the case submitted for resolution. The lower court noted that the case had been pending for more than four (4) years and it had always been at the "mercy" of petitioners when it acted favorably on their motions. There would be no end to this litigation if the court would give due course to this motion.[14]

Undeterred, petitioners sought recourse in the Court of Appeals through a petition for certiorari. But in the assailed Resolution dated 23 September 1996 the appellate court summarily dismissed their petition on the ground that the affidavit of non-forum shopping was signed and executed by counsel for petitioners and not by petitioners themselves, or one of them, as required by Circular No. 28-91 of the Supreme Court.[15]

Petitioners moved for reconsideration which the Court of Appeals rejected in its Resolution of 31 October 1996.[16] Petitioners are now before us contending that the appellate court erred in affirming the Order of the trial court dated 16 July

1996 and in dismissing their petition for non-compliance with the requirement of Circular No. 28-91. They pray that the appellate court remand the case to the court of origin for further proceedings.

Circular No. 28-91, which took effect on 1 April 1994, provides inter alia:

(1) (I)n every petition filed with the Supreme Court or the Court of Appeals, the petitioner, aside from complying with the pertinent provisions of the Rules of Court and existing circulars, must certify under oath all of the following facts or undertakings x x x x;

(2) Any violation of this revised Circular will entail the following sanctions: (a) it shall be a cause for the summary dismissal of the multiple petitions or complaints; x x x x (underscoring supplied).

Circular No. 28-91 has its roots in the rule that a party-litigant shall not be allowed to pursue simultaneous remedies in two (2) different fora, for such practice works havoc upon orderly judicial procedure. Forum shopping has been characterized as an act of malpractice that is prohibited and condemned as trifling with the courts and abusing their processes. It constitutes improper conduct which tends to degrade the administration of justice. It has also been aptly described as deplorable because it adds to the congestion of the already heavily burdened dockets of the courts.[17]

Nonetheless, we are not unmindful of this Court’s ruling in Gabionza v. Court of Appeals,[18] Loyola v. Court of Appeals,[19] and Kavinta v. Castillo, Jr.[20] that substantial compliance with Circular No. 28-91 is sufficient:

It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied to achieve the purposes projected by the Supreme Court when it promulgated that circular. Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure – which is to achieve substantial justice as expeditiously as possible.

The fact that the Circular requires that it be strictly complied with merely underscores its mandatory nature in that it cannot be dispensed with or its requirements altogether disregarded, but it does not thereby interdict substantial compliance with its provisions under justifiable circumstances.

In the instant case, we cannot apply the "substantial compliance" rule to petitioners and be as liberal minded. For one thing, counsel for petitioners gave a rather frail excuse for his non-compliance, i.e., oversight and haste in ensuring that the petition would be filed at the earliest possible time for the protection of his clients’ interests thereby overlooking the aforesaid circular.[21]

In Ortiz v. Court of Appeals[22] which involves a similar set of facts, we ruled -

(I)t should be recalled that Revised Circular No. 28-91 provides that the party must certify under oath that he has not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, and that to the best of his knowledge, no such action or proceeding is pending in the Supreme Court x x x x

Petitioners admit that their lawyer x x x signed the Certification on Non-Forum Shopping. Allegedly, Atty. Paulite has personal knowledge that the Ortizes had not commenced any other action or proceeding involving the same parties and causes of action. Petitioners now assert that their lawyer’s signature must be accepted as substantial compliance with the requirements of the Circular.

Regrettably, we find that substantial compliance will not suffice in a matter involving strict observance as provided for in Circular No. 28-91. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. To merit the Court’s consideration, petitioners here must show reasonable cause for failure to personally sign the certification. The petitioners must convince the court that the outright dismissal of the petition would defeat the administration of justice. However, the petitioners did not give any explanation to warrant their exemption from the strict application of the rule utter disregard of the rules cannot justly be rationalized by harking on the policy of

liberal construction x x x x

Finally, petitioners argue that the delay in the proceedings in the court below was not entirely their fault "as various circumstances and incidents beyond (their) control contributed to the delay."[23]

Contrary to petitioners’s assertions, their failure to present their evidence was their own undoing. A review of the records shows that the trial court had scheduled a total of six (6) hearing dates for the presentation of their evidence. These were 25 April 1996, 9 May 1996, 2 July 1996, 16 July 1996, 8 August 1996 and 20 August 1996. Five (5) of these trial dates were cancelled at the instance of petitioners. They themselves admitted that the 9 May 1996 hearing was postponed when Isagani Torres failed to appear in court because he was then incarcerated. Likewise, through a motion petitioners were able to have the hearing on 2 July 1996 moved to 16 July 1996. However on said date petitioners’ counsel failed to appear on time, thus prompting the trial court to declare petitioners’ right to present evidence as waived. As to the 8 August 1996 hearing, they moved to have the same reset, citing as reason the conflict of schedule of their counsel. And when the trial court granted the motion and transferred the hearing to 20 August 1996, petitioners once again submitted a motion praying that the hearing be reset to 2 September 1996. From these repeated resettings, it can be gleaned that the delay in the proceedings was largely, if not mainly, due to petitioners.

We also do not miss the fact that petitioners were represented by a law firm which meant that any of its members could lawfully act as their counsel during the trial. As such petitioners’ frequent motions to reset hearings by reason of their counsel’s unavailability should be cautiously considered to make sure that these were not mere dilatory tactics. As observed by the lower court, a perusal of the records shows that the case has been pending for a long period of time, with the court often accommodating petitioners. Thus there could be no grave abuse of discretion when the trial court finally ordered petitioners’ right to present evidence as waived to put an end to their foot dragging. Indeed, it is never too often to say that justice delayed is justice denied.

WHEREFORE, there being no reversible error committed by the Court of Appeals, the petition for review on certiorari is DENIED and the assailed Resolution of 23 September 1996 summarily dismissing the petition for certiorari and the Resolution of 31 October 1996 denying reconsideration are AFFIRMED. Consequently, the Regional Trial Court of Valenzuela, Metro Manila, is DIRECTED forthwith to render its decision in Civil Case No. 3812-V-92 without delay. Costs against petitioners.

SO ORDERED.

Mendoza, Quisumbing, and Buena, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

DECISION

June 30, 1961

G.R. No. L-14066VENANCIO CASTAÑEDA, ET AL., plaintiffs-appellees,

vs.PASTOR D. AGO, ET AL., defendants-appellants.

Quijano and Azores and J.P. Arroyo for plaintiffs-appellees.Jose M. Luison for defendants-appellants.

Dizon, J.:

Appeal from the decision of the Court of First Instance of Manila dated May 30, 1957, and its order of March 7, 1958 (R.A. pp. 46-58 & 156-157). The former sentenced appellant Pastor D. Ago as follows:

. . . to return to the plaintiffs the three pieces of machinery described in the complaint or to pay them jointly and severally the sum of P30,000. Said defendants are also hereby sentenced to pay the plaintiffs jointly and severally the sum of P1,750.00 for the month of August 3 to September 3, 1954 and from September 4, 1954 and until the three pieces of machinery are returned to the plaintiffs or paid them the sum of P30,000, the sum of P1,312.50 monthly, deducting therefrom the sum of P3,000.00 admitted by the plaintiffs to have been paid to them by the defendants, plus the sum of P2,000.00 as attorney's fees, with legal interest on all those amounts from the date the complaint was filed and until they are fully paid. Said defendants are also sentenced to pay the costs of these proceedings.

The order appealed from denied appellant's original and amended motion for reconsideration and new trial.

Appellees commenced this action to recover from appellant the three pieces of machinery described in their complaint, the sum of P18,000.00, with interest thereon at the legal rate from the date of filing of the complaint, the additional sum of P2,000.00 as attorney's fees, and the costs of suit. The complaint alleged that appellee delivered to appellant the machineries described therein together with one D-7 Caterpillar Tractor with a Bulldozer, as their share in the capital of the logging business they had agreed to engage in with him for a period of one year from August 3, 1954; that their written contract provided that appellant and appellees would divide equally the profits that may be realized in the business in excess of the sum of P7,750.00, this amount having been agreed to be the least share of appellees in said profits, to which they would be entitled even if the profits realized were less than said sum; that the tractor was returned to appellees after one month use; that appellant had paid to appellees, on account of their share in the profits, only the sum of P3,000.00; that upon expiration of the period of one year agreed upon, appellees demanded from defendant the return of the three pieces of machinery, and the payment of their share in the profits of their business, but appellant refused to comply with such demand and instead asked that their agreement be renewed.

Appellant filed his answer alleging that appellees had not complied with their obligation to furnish him with the spare parts and accessories necessary to place the machineries in working condition, to obtain which appellant had to spend the sum of P19,640.00; that the D-7 Caterpillar was not returned by him but was seized from him by virtue of a writ of replevin issued in another case. By way of counterclaim, appellant sought to recover damages resulting from the taking away from him of the D-7 Caterpillar Tractor and appellees' failure to comply with other stipulations of their agreement 0PBKBAUrl5.

Because neither appellant nor his counsel appeared when the case was called for trial on August 14, 1956, appellees were allowed to present their evidence, and on May 30, 1957 the court rendered the decision appealed from.

On July 1, 1957, appellant filed his original verified motion for reconsideration, the principal ground relied upon therein being that the notice of trial was sent to the Manila address of Atty. Mariano Yap who was no longer his attorney at that time; that in the latter part of December, 1955, appellant requested a clerk in the law office of his attorney Francisco Cupin to tell the latter to file his appearance in a substitution of Atty. Yap, "but due to the fact that Atty. Francisco Cupin was busy at hat time with his election protest in connection with the 1955 mayoralty fight in Butuan City where Atty. Cupin was a candidate, as found out later by the defendant Mr. Ago, said clerk was unable to tell Atty. Cupin of this request and as a result no such change of counsels and addresses was duly made"; that when the office of Atty. Yap received the notice of trial, his clerk sent the same by ordinary mail to appellant in Butuan City, which notice, however, was never received by him; that these circumstances caused his failure to appear at the trial mGdPmv6fOI.

The above-mentioned motion for reconsideration, however was not accompanied by any affidavit of merits. Appellees, on July 19, 1957, opposed it precisely on this particular ground, and further contended that the negligence or mistake committed by appellant and counsel was not excusable. On January 31, 1958 appellees filed supplemental opposition alleging that appellant's attorneys of record were Attys. Calo, Cupin and Yap; that was only after 15 months from the date of the trial and 5 months after appellant learned of the decision that said law firm withdrew its appearance from the case. In this connection it is worthy of notice that the original motion for reconsideration (R.A. pp. 64-68) was signed by Atty. Francisco R. Cupin a member of said law firm.

On February 1, 1958, that is, seven months after the filing of the original motion for reconsideration, appellant filed a verified amended motion for reconsideration and new trial, supported by the affidavits of appellant Pastor D. Ago, in one of which he claimed that he had a good and valid defense showing contrary to the allegations made in his answer to the complaint to the effect that their agreement was renewed for one year — that the written agreement attached to the complaint as Annex "A" and on which appellees based their cause of action had been cancelled prior to the filing of the complaint and upon the seizure by replevin of the D-7 Caterpillar Tractor with bulldozer mentioned therein — which seizure took place only a month after the contract was entered into on August 3, 1954; that appellees had committed a breach of the aforesaid agreement by not furnishing appellant with the required spare parts and accessories to put the remaining machineries in running condition; that said breach on the part of appellees entitled appellant to withdraw from the agreement; that after the cancellation of the agreement on September 12, 1954, the parties thereto agreed that appellant would simply rent the remaining machineries at the rate of P750.00 per month, which rent appellant had been paying until the present action was commenced. Appellees objected to the consideration of the amended motion claiming that the same was filed without leave of court and not in accordance with the requirements of Section 3, Rule 17; that the affidavit of merits did not state facts but mere conclusions; that it was filed too late, that is, more than 7 months after appellant had received notice of the decision.

After appellant had filed a reply to this opposition, the lower court issued its order of March 7, 1958, the pertinent portions of which read as follows:

The original motion was patently defective; and to admit, and give due course to, the amended motion would in effect allow a motion for reconsideration — or call it a petition for relief — beyond the period or periods fixed by the Rules of Court. Indeed, the Court cannot accept defendants' theory that they were not legally notified of the trial or that they have filed appropriate motion or petition with the necessary affidavits of merit within the reglementary period.

WHEREFORE the motion for reconsideration as well as the amended motion for reconsideration is denied for lack of merit rUlWDD.

The issue decisive of this appeal, therefore, is whether or not the lower court erred in denying the motion for reconsideration and the amended motion for reconsideration and new trial mentioned heretofore. In the light of the facts already stated above, we are constrained to hold that the lower court did not commit this error.

The record discloses that the attorneys of record of appellant who filed his answer to the complaint were Attys. Calo, Cupin and Yap. On the other hand, appellant admits that the notice of the trial was sent to and was received by Atty. Mariano Yap, a member of said law firm. At that time no withdrawal of appearance had been filed neither by the aforesaid law firm itself nor by Atty. Yap alone. Consequently, appellant's own allegations show that the service of the notice of the trial was proper and in accordance with the rules gaD6ACn.

Moreover, appellant's original motion, as the lower court held, was fatally defective, firstly, because it did not sufficiently prove by affidavit or otherwise the alleged accident, mistake or excusable negligence relied upon, and secondly, the same was not supported by an affidavit of merit showing that appellant had a good and valid defense.

This latter defect appellant obviously sought to cure more than seven months later when he filed his amended motion for reconsideration and new trial. It must be adverted to that when appellees, on July 19, 1957, filed a written opposition to appellant's original motion for reconsideration, they pointed out as first ground in support thereof precisely the lack of affidavit of merits to support the aforesaid motion. Although appellant had notice of this defect of his motion since then, it was only on February 1, 1958, that is, almost seven months thereafter that he made a desperate attempt to cure it by filing an amended motion.

Now, as far as appellant's appeal from the decision of the lower court is concerned, little need be said. The evidence presented by appellees was uncontradicted and sufficiently supports the findings of fact made and conclusions of law drawn therefrom by the trial court. We agree, therefore, with the lower court that appellees are entitled to the return of the three pieces of machinery described in their complaint or to the payment of their value in the sum of P30,000.00, and that in accordance with the contract Exhibit A, they are further entitled to the sums of money specified in the dispositive part of the decision appealed from.

WHEREFORE, the decision and the order appealed from are affirmed, with costs.

Bengzon, C.J. Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, De Leon and Natividad, JJ., concur.

Bautista Angelo and Barrera, JJ., took no part. kvTR.

EN BANC

G.R. No. L-15877     April 28, 1961

JOVENAL R. FERNANDEZ, Plaintiff-Appellee, vs. TAN TIONG TICK, ET AL., defendants. TAN TIONG TICK, Defendant-Appellant.

BARRERA, J.: chanrobles virtual law library

This is a direct appeal from the judgment of the Court of First Instance of Manila Honorable Carmelino G. Alvendia, presiding, quoted hereunder:

DECISION chanrobles virtual law library

This is an action to recover damages arising from the seizure of thirty long tons of unprepared scrap iron by the defendant Sheriff of Manila at the instance of defendant Tan Tiong Tick. chanroblesvirtualawlibrary chanrobles virtual law library

From the evidence presented by the parties, it appears that plaintiff is the owner of thirty long tons of scrap iron which was salvaged from the U.S. Navy Base at Sangley Point, Cavite (Exhs. A, B, and C). Said scrap iron was stockpiled at the scrap yard of Tan Tay Cuan at the Madrigal Compound on Cristobal Street, Manila.chanroblesvirtualawlibrary

In April, 1958 defendant Tan Tiong Tick filed a replevi suit against Tan Tay Cuan (Civil Case No. 35804, C.F.I., Manila) for the recovery of the scrap iron allegedly belonging to Tan Tiong Tick and in the possession of Tan Tay Cua (Exh. D-1). An order of seizure (Exh. D-2) was issued in due course and defendant Sheriff seized the scrap iron belonging to the herein plaintiff at the Madrigal Compound. chanroblesvirtualawlibrary chanrobles virtual law

library

Plaintiff filed a third party claim (Exh. E) but because defendant Tan Tiong Tick filed an indemnity bond in favor of the Sheriff (Exh. F), the scrap iron seized was not returned to plaintiff. chanroblesvirtualawlibrary chanrobles virtual law library

In the course of the proceedings in this case, the plaintiff asked for the dismissal of the complaint insofar as the defendant Sheriff is concerned. This step on the part of the plaintiff automatically dismisses the complaint against the bonding company. chanroblesvirtualawlibrary chanrobles virtual law library

The evidence by the plaintiff shows that the thirty long tons of scrap iron belonging to plaintiff was worth P50.00 per ton, after deducting the expenses of preparation. The value of the entire scrap iron of plaintiff which was taken by defendant Tan Tiong Tick is P1,400.00. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, judgment is rendered ordering defendant Tan Tiong Tick to pay plaintiff the value of his scrap iron in the sum of P1,400.00, plus compensatory damages which the Court fixes in the sum of P2,000.00, attorney's fees in the sum of P250.00 and costs.chanroblesvirtualawlibrary chanrobles virtual law library

The Notice of Appeal announces that defendant will raise on appeal the following legal questions:

1. Whether the act of the former counsel of the defendant of not pressing his request for continuance for the second day set for the hearing of this case to enable the herein defendant to testify and abruptly rested the case would constitute a confession of judgment and, hence, a valid ground to set aside the judgment and to reopen the case since counsel was not specially authorized to confess judgment. chanroblesvirtualawlibrary chanrobles virtual law library

2. Whether the negligence of the former counsel for the herein defendant in not informing the defendant that he rested the case and the negligence of the defendant in not inquiring from his counsel

about the status of the case is an excusable negligence and, hence, a valid ground to set aside the judgment.

The brief of appellant contains but one single assignment of error: The trial court erred in denying appellant's petition to set aside judgment and reopen the case. This error, in the language of appellant himself, is predicated on the following grounds:

1. That the act of the former counsel of appellant of not pressing his request for postponement for the second day set for the hearing of the case to enable the appellant to testify and, instead, abruptly rested the case, is in effect a confession of judgment and hence a valid ground to set aside the judgment and to reopen the case since said counsel was specially authorized to confess judgment; chanrobles virtual law library

2. That the negligence of the former counsel for the herein appellant in not informing the appellant that he rested the case and the negligence of the appellant in not inquiring from his counsel about the status of the case in an excusable negligence and hence a valid ground to set aside the judgment. chanroblesvirtualawlibrary chanrobles virtual law library

3. That the appellant has a good defense inasmuch as he has evidence to prove that all the scrap iron seized by the Sheriff of Manila in Civil Case No. 35804 belong to him; and chanrobles virtual law library

4. That Exhibits "A" and "B" of the appellee, which formed the basis of his alleged ownership of thirty (30) tons of scrap iron, show that the alleged scrap iron of the appellee were to be deposited at Bacood, Sta. Mesa, Manila, and not at Cristobal St., Paco, Manila, which is at the opposite bank of the Pasig River.

The first two grounds relied upon by appellant involve questions of law; the last two require review of the evidence presented or offered. The appellant having chosen to appeal directly to this Court on the announced purpose of raising only legal questions posed by the first two issues, we shall limit this opinion and decision accordingly.chanroblesvirtualawlibrary chanrobles virtual law library

The antecedents pertinent to the legal questions raised by appellant are briefly these: chanrobles virtual law library

After the issues have been joined, the case was set for hearing for February 3 and 5, 1959, as to defendant Tan Tiong Tick.1 On the first date mentioned, plaintiff testified in his own behalf and was cross-examined by counsel for defendant. Several documents were presented as exhibits of plaintiff. Thereafter, plaintiff rested his case. Thereupon, defendant's counsel called on the Deputy Sheriff of Manila as his first witness. Two documents (Exhibits 1 and 2) were presented as evidence. At this juncture, the following proceeding took place.

ATTY. MAPA: At this point I have another witness the defendant himself, but he developed flu, and since this case is set for another day, the day after tomorrow. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: Why did you not bring a medical certificate? chanrobles virtual law library

ATTY. MAPA: I came to know of it this morning when I came to fetch him. I think it is for the 5th. chanroblesvirtualawlibrary chanrobles virtual

law library

COURT: When they set for two (2) or three (3) days the purpose is not to enable the parties to ask for a postponement of the first two (days).chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. MAPA: I realize fully the correctness, but owing to the fact that when I ... I was a little bit late because came to fetch him he was indisposed. We request this Honorable Court, in the interest of justice, his testimony will not be very long, some identification only of certain matters. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: Where are those? The plaintiff might be willing to admit the genuineness of those documents, what are those? chanrobles virtual law library

ATTY. MAPA: As a matter of fact the testimony of .... chanroblesvirtualawlibrary chanrobles virtual law library

COURT: You said merely identification. Identification of the contract? Are you ready to pay fifty pesos (P50.00) the plaintiff to reimburse him of his expenses for having come again next time? chanrobles virtual law library

ATTY. MAPA: We respectfully rest our case by presenting only the only Exhibit 1 diagram made by the plaintiff of the stockyard in which the alleged thirty, (30) tons were posited and Exhibit 2, which is also marked as Exhibit D-7.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: Exhibit 2 is also admitted. Submitted. Pages 58-60, t.s.n., Mallari.)

Subsequently, on April 16, 1959, the court rendered the decision quoted earlier. chanroblesvirtualawlibrary chanrobles virtual law library

The first legal question propounded by appellant is: the act of the appellant's counsel of not pressing his request for postponement for the second day set for the hearing the case to enable the appellant to testify and, instead, abruptly rested the case, in effect a confession of judgment and hence a valid ground to set aside the judgment a to reopen the case since counsel wish not specially authorized to confess judgment? chanrobles virtual law library

We do not think so. Appellant's attorney has not withdrawn his client's defenses, much less consented to an entry of judgment against his client. On the contrary, the records show that he extensively cross-examined the plaintiff-appellee and thoroughly scrutinized the documentary evidence for appellee had rested his, case, appellant's counsel presented the Deputy Sheriff of Manila as witness for appellant and adduced documentary evidence, which he requested to be marked as Exhibits 1 and 2. He then asked for postponement because appellant was not present, but the trial court would not consent unless counsel would be willing to pay reasonable expenses to appellee for his having to come to trial again if postponed. Under the circumstances, counsel, who is not under obligation to pay the expenses imposed by the, court as a condition for the postponement, could do nothing. His resting the case with the evidence already introduced, whatever it meant, did not constitute confession of judgment. At most, it might be considered as a mistake or lack of foresight or preparation on the part of the attorney. But a client is bound by the action of his counsel in the conduct of a case and cannot be heard to complain that the result might have been different had he proceeded differently. (U.S. v. Umali, 15 Phil. 33; Vivero v. Santos, et al., G.R. No. L-8105 February 28, 1956). A client is bound by the mistakes of his lawyer Montesi v. Court, 48 Phil. 640; Isaac v. Mendoza, G.R. No. L-2830, June 21, 1951). As held in a case, "If such grounds (mistakes, lack of preparation, etc.) were to be admitted is reasons for reopening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent, or experienced, or learned." (De Flores v. Reynolds, Fed. Case No. 3742, 16 Blatch [U.S.] 397, cited in Vivero v. Santos, et al., supra.) chanrobles virtual law library

Appellant next inquires: Is the negligence of counsel in not informing appellant that he rested the case, and the negligence of appellant in not inquiring from his counsel about the status of the case an excusable negligence and, hence, a valid ground to set aside the judgment and reopen the case? chanrobles virtual law library

Again, we do not think so. Negligence is excusable where it is caused by failure to receive notice of the action or the trial, by a genuine and excusable mistake or miscalculation, by reliance upon assurances given by those upon whom the party had a right to depend, as the adverse party or counsel retained in the case, or a competent adviser, that it would not be necessary for him to take active part in the case, or that the suit would not prosecuted, by relying on another person to attend to the case for him, when such other person promised to do or was chargeable with that duty or by a well-founded belief that the case would not be reached for trial as was in fact reached, or by other circumstances not involving fault of the moving party (34 C.J. 303, cited in 1 [part 11] Francisco, Rules of Court in the Philippines, 1957 Ed., pp. 774-775). The standard of care required a defendant is that which an ordinarily prudent man bestows upon his important business (Gaylord v. Berry, 169 N.C. 733, 86 S.E. 623). None of these mentioned circumstances obtains in the case at bar. Here it appears that appellant himself as well as his counsel were du notified and had full knowledge that the case was to heard on the date it was actually tried. Counsel was, fact, present thereat and conducted the hearing thereof, resting the case after cross-examining appellee as witness and scrutinizing the evidence presented by the latter an thereafter, presenting evidence in support of appellant defense. Considering that the client is bound by his counsel's conduct and handling of his case during the trial, a appellant cannot now seriously contend that he was not notified that the case was already submitted for decision. Neither is appellant's failure to inquire from his counsel regarding the status of the case, an excusable negligence to justify rehearing or retrial. As far as the trial court is concerned, appellant was already duly notified, through his counsel, of the entire proceedings in the case. If failed to inquire from his counsel as to said status, appellant alone was to blame. As a client he should have been in contact with his counsel from time to time, in order that he may be informed of the progress of his case, there by exercising that standard of care "which an ordinary prudent man bestows upon his important business" (Gaylord v. Berry, supra).chanroblesvirtualawlibrary chanrobles virtual law library

Furthermore, it appears that appellant's petition to s aside the judgment and reopen the case, is grounded on his alleged excusable negligence in failing to appear an testify during the hearing of the case on February 3, 1959, namely, his becoming ill with flu (influenza) on said date. We find, however, that appellant failed to accompany said petition with affidavits of merit showing the excusable negligence relied upon, and the facts constituting his good and substantial cause of action or defense, as expressly required under Section 3, Rule 38 of the Rules of Court. We have repeatedly held that such a defect is fatal (Abao v. Virtucio, et al., G.R. No. L-16429, prom. October 25, 1960; Price Stabilization Corporation v. Court of First Instance of Manila, et al., G.R. No. L-7959, prom. May 30, 1955), which warrants the denial of the relief sought (Abao v. Virtucio, et al., supra, citing Coombs v. Santos, 24 Phil. 446; McGrath v. Del Rosario, 49 Phil. 330; Villanueva, et al. v. Alcoba, G.R. No. L-9694, prom. April 29, 1957). The reason for the rule is that it is the affidavits of merit which serve as jurisdictional basis for a court to entertain a petition for relief (Abao v. Virtucio, et al., supra; Omandam v. Director of Prisons, G.R. No. L-4301, prom. July 29, 1954). Stated differently, where a petition to set aside a judgment or reopen a case pursuant to Rule 38 of the Rules of Court is not accompanied with said affidavits of merit, the court with which it is filed is not called upon to entertain the petition. Applied to the instant case, appellant's petition to set aside the judgment in question and reopen the case acquired no standing in court and, consequently, it was rightly denied. chanroblesvirtualawlibrary chanrobles virtual law library

With these conclusions, we find it unnecessary to discuss the other points raised by the parties. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the order of the trial court dated May 19, 1959 denying appellant's petition to set aside the judgment of April 16, 1959 appealed from, is hereby affirmed, with costs against the appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes and Dizon, JJ., concur.Bautista Angelo, J., took no part.