A.C. No.

1359 October 17, 1991

GENEROSA BUTED and BENITO BOLISAY, petitioners,
vs.
ATTY. HAROLD M. HERNANDO, respondent.
Jorge A. Dolorfino for petitioners.
RESOLUTION
PER CURIAM:p
On 22 August 1974, spouses Generosa Buted and Benito Bolisay
filed an administrative complaint for malpracticeagainst
respondent Atty. Harold M. Hernando, charging the latter with
having wantonly abused professional secrets or information
obtained by him as their counsel.
After respondent Hernando filed his Answer on 25 June 1974,
the Court, in a resolution dated 4 October 1974 referred the
complaint to the Solicitor-General for investigation, report and
recommendation.
On 10 February 1975, complainants presented a Joint Affidavit of
Desistance. 1
On 24 October 1975, the Solicitor-General conducted a hearing
where respondent took the witness stand on his own behalf.
The record of the case shows the following background facts:
In an action for partition instituted by Generosa as compulsory heir
of the deceased Teofilo Buted, respondent was counsel for Luciana
Abadilla and a certain Angela Buted. Involved in said partition case
was a parcel of land Identified as Lot 9439-B. Respondent
ultimately succeeded in defending Luciana Abadilla's claim of
exclusive ownership over Lot 9439-B. When Luciana died,
respondent withdrew his appearance from that partition case.
It appears that Luciana Abadilla sold the lot to Benito Bolisay and a
new Transfer Certificate of Title over the lot was issued in the name
of complainant spouses.
When an action for specific performance was lodged by a couple
named Luis Sy and Elena Sy against Benito Bolisay as one of the
defendants, 2 the latter retained the services of respondent Atty.
Hernando however claims that he rendered his services to Benito
Bolisay free of charge. Subject of this case was a contract of lease
executed by Benito's co-defendant therein, Enrique Buted, over
ahouse standing on a portion of Lot No. 9439-B. It appears that the
Sy's were claiming that the lease extended to the aforementioned
lot. Benito was then asserting ownership over the realty by virtue
of a Deed of Sale executed by Luciana Abadilla in his favor.
Eventually, the Sy's were ordered to vacate the house subject of
the lease. Respondent avers that the relationship between himself

and Benito Bolisay as regards this case was terminated on 4

December 1969. 3
On 23 February 1974, respondent Hernando, without the consent
of the heirs of Luciana Abadilla and complainant spouses, filed a
petition on behalf of the heirs of Carlos, Dionisia and Francisco all
surnamed Abadilla, seeking the cancellation of the
Transfer Certificate of Title (TCT) of complainant spouses over the
lot. Carlos, Dionisia and Francisco were Luciana's registered coowners in the original certificate of title covering Lot No. 9439B. 4 At the hearing, respondent Hernando testified that if the
petition for cancellation of TCT was granted, Lot 9439-B would no
longer be owned by complainant spouses but would be owned in
common by all the heirs of Luciana Abadilla. 5
Complainant spouses, upon learning of respondent's appearance
against them in the cadastral proceeding, manifested their
disapproval thereof in a letter dated 30 July 1974. 6 Respondent
however, pursued the case until it was eventually dismissed by
the trial court on 2 September 1974 on the ground of
prescription. 7
At the hearing before the Office of the Solicitor General and in his
Answer, respondent Hernando admitted his involvement in the
cadastral case as counsel for the Abadillas but denied having seen
or taken hold of the controversial Transfer Certificate of Title, and
having availed himself of any confidential information relating to
Lot 9439-B.
In its Report and Recommendation dated 29 March 1990, the
Solicitor General recommends that respondent be suspended from
the practice of law for three (3) months for violation of the Canons
of Professional Ethics by representing clients with conflicting
interests, and filed before this Court the corresponding
Complaint 8 dated 30 March 1990.
The issue raised in this proceeding is: whether or not respondent
Hernando had a conflict of interests under the circumstances
described above.
The Canons of Professional Ethics, the then prevailing parameters
of behavior of members of the bar, defines a conflict of interests
situation in the following manner:
6. Adverse influence and conflicting interests.
xxx xxx xxx
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given
after a full disclosure of the facts. Within the
meaning of this canon, a lawyer represents
conflicting interests when, in behalf of one client, it is

his duty to contend for that which duty to another

client requires him to oppose.
The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidence
forbids also the subsequent acceptance of retainers
or employment from others in matters adversely
affecting any interest of the client with respect to
which confidence has been reposed.
(Emphasis supplied)
Though as regards the first and second cases handled by
respondent, no conflict of interest existed, the same cannot be said
with respect to the action for specific performance and the
cadastral proceeding. By respondent's own admission, he defended
the right of ownership over Lot 9439-B of complainant Benito
Bolisay in the action for specific performance. He assailed this
same right of ownership when he subsequently filed a petition for
cancellation of complainants' Transfer Certificate of Title over that
same lot. Respondent Hernando was in a conflict of interest
situation.
It is clear from the above-quoted portion of the Canons of
Professional Ethics that in cases where a conflict of interests may
exist, full disclosure of the facts and express consent of all the
parties concerned are necessary. 9The present Code of
Professional Responsibility is stricter on this matter considering
that consent of the parties is now required to be in written
form. 10In the case at bar, such consent was wanting.
Respondent persistently argues that contrary to the claims of
complainant spouses, he had never seen nor taken hold of the
Transfer Certificate of Title covering Lot No. 9439-B nor obtained
any confidential information in handling the action for specific
performance. 11 The contention of respondent is, in effect, that
because complainant has not clearly shown that respondent had
obtained any confidential information from Benito Bolisay while
representing the latter in the action for specific performance,
respondent cannot be penalized for representing conflicting
interests. That is not the rule in this jurisdiction. The rule here is,
rather, that the mere fact that respondent had acted as counsel for
Benito Bolisay in the action for specific performance should have
precluded respondent from acting or appearing as counsel for the
other side in the subsequent petition for cancellation of the
Transfer Certificate of Title of the spouses Generosa and Benito
Bolisay. There is no necessity for proving the actual transmission of
confidential information to an attorney in the course of his
employment by his first client in order that he may be precluded
from accepting employment by the second or subsequent client

where there are conflicting interests between the first and the
subsequent clients. The reason for this rule was set out by the
Court in Hilado v. David 12 in the following terms:
Communications between attorney and client are, in
a great number of litigations, a complicated affair,
consisting of entangled relevant and irrelevant,
secret and well known facts. In the complexity of
what is said in the course of the dealings between an
attorney and a client, inquiry of the nature
suggested would lead to the revelation, in advance
of the trial, of other matters that might only further
prejudice the complainant's cause. And the theory
would be productive of other unsalutary results. To
make the passing of confidential communication a
condition precedent; i.e., to make the employment
conditioned on the scope and character of the
knowledge acquired by an attorney in determining
his right to change sides, would not enhance the
freedom of litigants, which is to be sedulously
fostered, to consult with lawyers upon what they
believe are their rights in litigation. The condition
would of necessity call for an investigation of what
information the attorney has received and in what
way it is or it is not in conflict with his new
position. Litigants would be in consequence be
wary in going to an attorney, lest by an unfortunate
turn of the proceeding, if an investigation be held,
the court should accept the attorney's inaccurate
version of the facts that came to him.
Hence the necessity of setting down the existence of
the bare relationship of attorney and client as the
yardstick for testing incompatibility of interests. This
stern rule is designed not alone to prevent the
dishonest practitioner from fraudulent conduct, but
as well to protect the honest lawyer from
unfounded suspicion of unprofessional
practice. (Strong vs. Int. Bldg., etc.; Ass'n. 183 III.,
97; 47 L.R.A., 792) It is founded on principles of
public policy, on good taste. As has been said
another case, the question is not necessarily one of
the rights of the parties, but as to whether the
attorney has adhered to proper professional
standard. With these thoughts in mind, it behooves
attorneys, like Caesar's wife, not only to keep
inviolate the client's confidence, but also to avoid the
appearance of treachery and double-dealing. Only

thus can litigants be encouraged to entrust their

secrets to their attorneys which is of paramount
importance in the administration of
justice. 13 (Emphasis supplied)
This Court went further in San Jose v. Cruz, 14 where the lawyer
was charged with malpractice for having represented a new client
whose interest was opposed to those of his former clients in
another case:
The record shows that the respondent offered his
services to the Matienzo spouses knowing that the
petitioner had obtained a favorable judgment in the
civil case No. 5480 and that his efforts in the
subsequent civil case No. 5952 would frustrate said
judgment and render it ineffectual, as has really
been the result upon his obtaining the writ of
injunction above-mentioned. Obviously his conduct is
unbecoming to an attorney and cannot be
sanctioned by the courts. An attorney owes loyalty to
his client not only in the case in which he has
represented him but also after the relation of
attorney and client has terminated and it is not a
good practice to permit him afterwards to defend in
another case other persons against his former client
under the pretext that the case is distinct from, and
independent of the former case. 15 (Emphasis
supplied)
The appropriate rule has been expressed by Justice Malcolm in the
following manner:
An attorney is not permitted, in serving a new client
as against a former one, to do anything which will
injuriously affect the former client in any manner in
which the attorney formerly represented him, though
the relation of attorney and client has terminated,
and the new employment is in a different case; nor
can the attorney use against his former client any
knowledge or information gained through their
former connection. 16 (Emphasis supplied)
The absence of monetary consideration does not exempt the
lawyer from complying with the prohibition against pursuing cases
where a conflict of interest exists. The prohibition attaches from
the moment the attorney-client relationship is established and
extends beyond the duration of the professional relationship.
The Court therefore agrees with the Solicitor-General that
respondent Hernando is guilty of violation of the Canons
of Professional Ethics by representing clients with

conflicting interests. We believe, however, that a heavier penalty is

appropriate.
ACCORDINGLY, the Court Resolved to SUSPEND Atty. Harold
M. Hernando from the practice of law for a period of five (5)
months, with a WARNING that repetition of the same or similar
offense will warrant a more severe penalty. A copy of this
Resolution shall be furnished to all courts and to the Office of the
Bar Confidant and spread on the personal record of respondent.
Fernan, C.J., Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ.,
concur.
CBD CASE No. 251 July 11, 1995
ADELINA T. VILLANUEVA, complainant,
vs.
ATTY. TERESITA STA. ANA, respondent.
PER CURIAM:
Complainant Adelina T. Villanueva has sought the disbarment of
respondent Attorney Teresita Sta. Ana.
From the Report and Recommendation of the Commission on Bar
Discipline and the records of the case, it would appear that
complainant first met respondent lawyer some time in April 1992
when the former brought certain documents to the latter for
notarization. Respondent later learned that complainant had
planned to borrow a substantial sum from a bank or lending
institution. Respondent represented that she could facilitate the
loan if complainant could put up a land collateral and provide a
"guaranty deposit" of P150,000.00. Evidently convinced that
respondent could help, complainant handed over and entrusted to
respondent the amount of P144,000.00, as well as various
documents, e.g., a special power of attorney, deed of sale, tax
declaration and land title (in the name of complainant's father),
required for the loan application. Respondent later told complainant
that an additional amount of P109,000.00 was needed for
withholding and documentary stamp taxes, plus surcharges.
Complainant thereupon decided to forego the loan application. She
demanded from respondent the return of her money; however, the
latter not only failed to heed the request but also then began to
avoid complainant.
Complainant finally sought assistance from the office of the VicePresident of the Philippines, which referred the matter to the
National Bureau of Investigation ("NBI"). Respondent was
subpoenaed twice by the agent-on-case but she failed in both
instances to appear. The investigation, nonetheless, went through;
thereafter, the NBI recommended that respondent be criminally
charged with estafa under Article 315, paragraph 1(b), of the

Revised Penal Code and that disbarment proceedings be taken

against her. In a letter-referral, dated 03 May 1993, then NBI
Director Epimaco A. Velasco transmitted to the Commission on Bar
Discipline ("Commission") of the Integrated Bar of the Philippines
("IBP") the Bureau's evaluation.
The Commission required respondent to respond to the charges but
respondent neither complied nor appeared at any of the hearings
scheduled by it.
In the course of its proceedings, the Commission noted
several criminal charges filed against respondent; viz:
(1) Criminal Case No. 92-8849 for Falsification of Private Document,
pending before the Regional Trial Court of Antipolo, Branch 73;
(2) Criminal Case No. 93-9289 for Estafa under Article 315, par. 1(b)
of the Revised Penal Code, pending before the Regional Trial Court
of Antipolo, Branch 72;
(3) Criminal Case No. 93-118159 for Estafa through Falsification of
Public Document filed with the Regional Trial Court of Manila,
Branch 15, which resulted in her conviction. The dispositive portion
of the decision, dated 24 March 1994, read:
WHEREFORE, this Court finds the accused GUILTY
beyond reasonable doubt of the complex crime of Estafa thru
falsification of public document and hereby imposes upon said
accused an indeterminate penalty of 2 years 4 months of prision
correccional as minimum to 20 years of reclusion temporal as
maximum and indemnify the offended party the sum of
P136,000.00 and to pay the cost. 1
(4) Criminal Cases Nos. 8015 and 8019 for Violation of Section 3(c),
Republic Act No. 3019, pending before the Second Division of the
Sandiganbayan;
(5) Criminal Cases Nos. 7351 and 7354 also for Violation of Section
3(c), Republic Act No. 3019, pending before the Second Division of
the Sandiganbayan;
(6) Criminal Case No. 7036 for Violation of Section 3(c), Republic
Act No. 3019, pending before the Second Division of the
Sandiganbayan; and
(7) Criminal Case No. 6731 for Violation of Section 3(c), Republic
Act No. 3019, pending before the Second Division of the
Sandiganbayan.
In the Commission's Report and Recommendation, dated 25 July
1994, Investigating Commissioner Victor C. Fernandez
recommended that "the respondent be disbarred for being totally
unfit to be a member of the legal profession." 2 In its Resolution No.
XI-94-219, dated 14 January 1995, the Board of Governors of the

Integrated Bar of the Philippines ("IBP") resolved to adopt and

approve the report of the Investigating Commissioner.
We also agree.
Well-settled is the rule that good moral character is not only a
condition precedent to an admission to the legal profession but it
must also remain extant in order to maintain one's good standing in
that exclusive and honored fraternity. 3 The Code of Professional
Responsibility mandates:
CANON 1 . . . .
Rule 1.01 A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
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.
Despite all the opportunities accorded to her, respondent has failed
to present her defense and to refute the charges or, at the very
least, to explain herself. The Court is thus left with hardly any
choice other than to accept the findings and recommendations of
the Integrated Bar of the Philippines and the Commission on Bar
Discipline.
WHEREFORE, respondent Teresita Sta. Ana is DISBARRED. The Clerk
of Court is directed to strike out her name from the Roll of
Attorneys.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Melo, Puno,
Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Feliciano, Bellosillo and Quiason, JJ., are on leave.
EN BANC
[A.C. No. 2597. March 12, 1998]
GLORITO
V.
MATURAN, petitioner,
vs. ATTY.
CONRADO S. GONZALES, respondent.
RESOLUTION
ROMERO, J.:
A complaint for disbarment was filed with this Court on October
25, 1983, by Glorito V. Maturan against his counsel, Atty. Conrado
S. Gonzales, charging him with immoral, unethical, and anomalous
acts. The respondent filed his comment thereto on February 6,
1984. On November 11, 1997, or after thirteen (13) years,
the Board of Governors of the Integrated Bar of the Philippines
submitted their report and recommendation on the instant case.
The facts, as culled from the records, are as follows:

Spouses Antonio and Gloria Casquejo instituted their son-inlaw, Glorito V. Maturan (herein petitioner), as their attorney-in-fact,
through a Special Power of Attorney(SPA) dated November 6,
1981. Said SPA authorized Maturan to file ejectment cases against
squatters occupying Lot 1350-A, Psd-50375, located in General
Santos City, as well as criminal cases against the latter for violation
of P.D. 772, again in connection with said lot. Respondent, Atty.
Conrado Gonzales, prepared and notarized said Special Power of
Attorney.
Subsequently, Glorito Maturan engaged the services of
respondent in ejecting several squatters occupying Lot 1350-A, Psd50735. While said lot was registered in the name of Celestino
Yokingco, Antonio Casquejo had, however, instituted a case for
reconveyance of property and declaration of nullity against the
former, docketed as Civil Case No. 2067.
As a consequence of his engagement by petitioner, respondent
Gonzales filed Civil Case No. 1783-11 for Forcible Entry and
Damages against several individuals. On February 18, 1983, a
judgment was rendered in favor of petitioner. Petitioner, through
respondent, filed a motion for issuance of a writ of execution on
March 10, 1983.
In the interim, the parties to Civil Case No. 2067 entered into
a compromise agreement, which was judicially approved in a
judgment dated March 28, 1983.
On June 22, 1983, while the motion for issuance of a writ of
execution was pending, and without withdrawing as counsel for
petitioner, respondent filed, on behalf of Celestino Yokingco, et al.,
Civil Case No. 2746, an action to annul the judgment rendered in
Civil Case No. 2067. The action was predicated on the lack of
authority on the part of petitioner to represent Antonio and Gloria
Casquejo, as no such authorization was shown to be on record in
Civil Case No. 2067. On August 24, 1983, respondent, on behalf of
Celestino Yokingco, et al., also filed Special Civil Case No. 161 for
injunction with a prayer for preliminary injunction, with damages,
against petitioner.
Aggrieved
by
respondents
acceptance
of professional
employment from their adversary in Civil Case No. 2067, and
alleging that privileged matters relating to the land in question had
been transmitted by petitioner to respondent in Civil Case 1783-11,
petitioner filed an administrative complaint against the former for
immoral, unethical, and anomalous acts and asked for his
disbarment.
Respondent,
in
a
comment
dated
January
25,
1984, denied having
committed
any
malicious,
unethical,
unbecoming, immoral, or anomalous act against his client.
Respondent declared that he was of the belief that filing a motion

for issuance of a writ of execution was the last and final act in
the lawyer-client relationship between himself and petitioner, and
that his formal withdrawal as counsel for the Casquejos was
unnecessary in order to sever the lawyer-client relationship
between them. Furthermore, he alleged that his acceptance of
employment from Yokingco was for him, an opportunity to honestly
earn a little more for his childrens sustenance.
The investigating commissioner of the Integrated Bar of the
Philippines, in his report dated August 21, 1997, found respondent
guilty of representing conflicting interests and recommended that
he be suspended for three (3) years. The Board of Governors of the
IBP adopted and approved the report and recommendation of the
investigating commissioner but recommended that the suspension
be reduced from three (3) years to one (1) year.
This Court adopts the findings of the investigating
commissioner finding respondent guilty of representing conflicting
interests. It is improper for a lawyer to appear as counsel for one
party against the adverse party who is his client in a related suit, as
a lawyer is prohibited from representing conflicting interests or
discharging inconsistent duties. He may not, without being guilty
of professional misconduct, act as counsel for a person whose
interest conflicts with that of his present or former client.[1] That the
representation of conflicting interest is in good faith and with
honest intention on the part of the lawyer does not make the
prohibition inoperative.
The reason for the prohibition is found in the relation of
attorney and client, which is one of trust and confidence of the
highest degree. A lawyer becomes familiar with all the facts
connected with his clients case. He learns from his client the weak
points of the action as well as the strong ones. Such knowledge
must be considered sacred and guarded with care. No opportunity
must be given him to take advantage of the clients secrets. A
lawyer must have the fullest confidence of his client. For if the
confidence is abused, the profession will suffer by the loss thereof.
[2]

This Court finds respondents actuations violative of Canon 6 of

the Canons of Professional Ethics which provide in part:
It is unprofessional to represent conflicting interests, except
by express consent of all concerned given after a full disclosure of
the facts. Within the meaning of this canon, a lawyer represents
conflicting interests when, in behalf of one client, it is his duty to
contend for that which duty to another client requires him to
oppose.
Moreover, respondents justification for his actions reveal a
patent ignorance of the fiduciary obligations which a lawyer owes
to his client. A lawyer-client relationship is not terminated by the

filing of a motion for a writ of execution. His acceptance of a case

implies that he will prosecute the case to its conclusion. He may
not be permitted to unilaterally terminate the same to the prejudice
of his client.
As to the recommendation that the term of suspension be
reduced from three years to one year, we find the same to be
unwarranted. In similar cases decided by the Supreme Court, the
penalty of two or three years suspension has been imposed where
respondent was found guilty of representing conflicting
interests. In Vda. De Alisbo vs. Jalandoon, Sr., [3] the respondent,
who appeared for complainant in a case for revival of judgment,
even though he had been the counsel of the adverse party in the
case sought to be revived, was suspended for a period of two
years. In Bautista vs. Barrios,[4] a suspension of two years was
imposed on respondent Barrios, who had drafted a deed of partition
for petitioner, but who appeared for the other party therein, when
the same was sought to be enforced by petitioner. In PNB vs.
Cedo,[5] the Court even suspended the respondent therein for three
years, but only because respondent not only represented
conflicting interests, but also deliberately intended to attract clients
with interests adverse to his former employer. Finally, in Natan vs.
Capule,[6] respondent was suspended for two years after he
accepted professional employment in the very case in which his
former client was the adverse party.
ACCORDINGLY, this Court resolves to MODIFY the IBP
recommendation to suspend respondent for one year and modifies
it to SUSPENSION from the practice of law for TWO (2) YEARS,
effective immediately.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, , Martinez and Quisumbing,
JJ., concur.
Purisima, J., no part. Did not take part in the deliberation.
Panganiban, J., no part. Related to one of involved clients of
respondents.
G.R. No. 76232 January 18, 1991
VILL TRANSPORT SERVICE, INC., petitioner,
vs.
HON. COURT OF APPEALS, THE ENERGY CORPORATION, and
the DEPUTY SHERIFF of the Regional Trial Court, Makati,
Metro Manila, respondents.
Romualdo M. Jubay for petitioner.
Castillo, Laman, Tan & Pantaleon for private respondent.

FERNAN, C.J.:p
The issue in this petition for review on certiorari is whether or not
notice of a decision served upon counsel in a case who did not
leave a forwarding address after he had moved from his address of
record, is a valid service thereby making the decision final and
executory after the lapse of the period to appeal.
The facts as found by the Court of Appeals are as follows:
In Civil Case No. 45167 before the Regional Trial Court of Makati,
Branch CXLI, defendant Vill Transport Service, Inc. (Vill Transport for
brevity) was held liable for damages for breach of contract in favor
of the plaintiff Energy Corporation. Vill Transport was ordered to pay
Energy Corporation US$25,524.75 or P191,435.62 as damages,
P40,000 for charter fees, P33,931.65 for rental and maintenance
costs and P63,750 for service fees, with all of these amounts being
subject to 12% interest per annum from June 16, 1980, plus
attorney's fees of P8,866.60.
On June 7, 1985 a copy of the decision was sent by registered
mail to Atty. Amante Pimentel, counsel of record of Vill Transport, at
his address at 563 Tanglaw Street, Mandaluyong, Metro Manila.
However, it was returned to the court with the notation that the
addressee had moved out of his given address without leaving a
forwarding address.
On September 14, 1985, Energy Corporation moved for execution
of the decision and on September 19, 1985, the court favorably
acted on the motion. On September 24,1985, a writ of
execution was therefore issued.
A month later, Vill Transport filed an urgent motion for
reconsideration of the order of September 19, 1985 and served
notice of its intention to appeal. It contended that the decision had
not as yet become final because it came to know of the decision
only on October 21, 1985. It also claimed that the writ of execution
was void as no copy of the motion for execution was served on it.
Energy Corporation filed an opposition to said urgent motion
pointing out that the decision had become final and executory since
a copy of the decision was served on Vill transport through
its counsel at his address of record and no appeal was perfected
within the reglementary period of appeal. It added that a motion for
execution of a final and executory judgment did not have to be with
notice to defendant.
Before the motion for reconsideration could be resolved by the
court, Vill Transport filed a motion for new trialbased on newlydiscovered evidence. Again, without waiting for the resolution of
said motion, it filed with the Court of Appeals a petition
for certiorari and mandamus with preliminary injunction aimed at

the setting aside of the order of execution and the issuance of an

order for a new trial.
On September 30, 1986, the Court of Appeals 1 rendered a decision
dismissing the petition for lack of merit. 2 It held that petitioner's
counsel was duty-bound to notify the trial court of any change of
address and his failure to do so could not be excused. It added that
the trial court had every reason to consider the service of its
decision completed upon the expiration of five days from notice to
counsel in the absence of prior notice by the latter of any change of
address. It opined that "to hold that Rule 13, Sec. 8 cannot apply
here because Atty. Pimentel did not get the notice, would be to
encourage litigants or their attorneys to evade the service of
judgments and orders by simply leaving their addresses without
notice of their whereabouts." 3
Its motion for the reconsideration of said decision having been
denied, Vill Transport interposed the instant petition for review
on certiorari.
Petitioner admits the negligence of its counsel in not leaving a
forwarding address but contends that its counsel was not actually
notified of the registered letter containing a copy of the trial court's
decision for he had moved from his address of record. Hence,
service thereof could not have taken effect after the lapse of the
five-day period mentioned in Rule 13, Section 8 of the Rules of
Court. It invokes due process complaining that it was deprived of its
right to appeal from the decision of the lower court on account of
its failure to receive a copy of the decision.
On the other hand, private respondent avers that the petition was
prosecuted manifestly to delay execution of the decision of the
lower court which had long become final and executory. It stresses
the fact that, being designated by Section 2, Rule 13 of the Rules of
Court to receive copies of all court processes, petitioner's counsel
was duty-bound to inform the court of any changes in his address
of record and therefore, should he fail to do so, service of such
processes in his address of record should be considered complete
and binding upon his client.
We find for the private respondent.
Section 8, Rule 13 of the Rules of Court provides that "(s)ervice by
registered mail is complete upon actual receipt by the addressee;
but if he fails to claim his mail from the post office within five (5)
days from the date of first notice of the postmaster, service shall
take effect at the expiration of such time." In Barrameda
vs. Castillo, 4 the Court held that since the exception in service by
registered mail refers to constructive service, not to actual receipt
of the mail, it is but fair and just that there be conclusive proof that
a first notice was sent by the postmaster to the addressee. While in

the more recent case of De la Cruz vs. De la Cruz, 5 the Court

appears to have adopted the more stringent rule of requiring not
only that the notice of the registered mail be sent but that it should
also be delivered to and received by the addressee, We find that
this rule cannot be applied in this case wherein the element of
negligence is present.
Petitioner herein disputes that a first notice was ever sent to its
counsel of record because "the post office just returned the
registered letter and put the stampmark . . . 'Moved'" thereon. 6 To
our mind, petitioner's contention is sufficient proof that indeed a
first notice was sent to its counsel of record. Its non-receipt by the
addressee, however, was due entirely to his neglect in informing
the court of the fact that he had moved and had a new address. To
cater to petitioner's rhetorical argument would put a premium on
negligence and encourage the non-termination of cases by reason
thereof.
In Antonio vs. Court of Appeals, 7 the Court categorically stated that
the requirement of conclusive proof of receipt of the registry notice
"presupposes that the notice is sent to the correct address as
indicated in the records of the court. It does not apply where, as in
the case at bar, the notice was sent to the lawyer's given address
but did not reach him because he had moved therefrom without
informing the court of his new location. The service at the old
address should be considered valid. Otherwise, no process can be
served on the client through his lawyer if the latter has simply
disappeared without leaving a forwarding address. There is no need
to stress that service on the lawyer, if valid, is also valid service on
the client he represents. The rule in fact is that it is on the lawyer
and not the client that the service should first be made."
Losing a case on account of one's counsel's negligence is a bitter
pill to swallow for the litigant. But then, the Court is duty-bound to
observe its rules and procedures. And, in the observance thereof
for the orderly administration of justice, it cannot countenance the
negligence and ineptitude of lawyers who wantonly jeopardize the
interests of their clients. 8 On his part, a lawyer shall observe the
rules of procedure and shall not misuse them to defeat the ends of
justice. 9
Thus, a lawyer should so arrange matters that official and judicial
communications sent by mail will reach him promptly and should
he fail to do so, not only he but his client as well, must suffer the
consequence of his negligence. 10 Failure to claim registered mail of
which notice had been duly given by the postmaster is not
excusable negligence that would warrant the reopening of a
decided case. 11 The same rule applies in cases like the instant one

where the counsel, through his negligence, caused the nondelivery

of a judicial notice.
WHEREFORE, the instant petition is hereby denied for lack of merit.
This decision is immediately executory. Costs against the petitioner.
SO ORDERED.
Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
A.C. No. 4103 September 7, 1995
VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR.
SOCORRO F. MANAS, and TRINIDAD NORDISTA, complainants,
vs.
ATTY. AMADO R. FOJAS, respondent.
DAVIDE JR., J.:
In their letter of 8 September 1993, the
complainants, former clients of the respondent, pray that the latter
be disbarred for "malpractice, neglect and other offenses which
may be discovered during the actual investigation of this
complaint." They attached thereto an Affidavit of Merit wherein
they specifically allege:
1. That we are Defendants-Appellates [sic] in
the Court of Appeals Case No. CA-G.N. CV No. 38153
of which to our surprise lost unnecessarily the
aforesaid Petition [sic]. A close perusal of the case
reveals the serious misconduct of our attorney on
record, Atty. Amado Fojas tantamount to malpractice
and negligence in the performance of his duty
obligation to us, to defend us in the aforesaid case.
That the said attorney without informing us the
reason why and riding high on the trust and
confidence we repose on him either abandoned,
failed to act accordingly, or seriously neglected to
answer the civil complaint against us in the sala of
Judge Teresita Capulong Case No. 3526-V-91 Val.
Metro Manila so that we were deduced [sic] in
default.
2. That under false pretenses Atty. Fojas assured us
that everything was in order. That he had already
answered the complaint so that in spite of the
incessant demand for him to give us a copy he
continued to deny same to us. Only to disclose later
that he never answered it after all because according
to him he was a very busy man. Please refer to Court
of Appeals decision dated August 17, 1993.
3. That because of Atty. Amado Foja's neglect and
malpractice of law we lost the Judge Capulong case

and our appeal to the Court of Appeals. So that it is

only proper that Atty. Fojas be disciplined and
disbarred in the practice of his profession.
In his Comment, the respondent admits his "mistake" in failing to
file the complainants' answer in Civil Case No. 3526-V-91, but he
alleges that it was cured by his filing of a motion for
reconsideration, which was unfortunatelydenied by the court. He
asserts that Civil Case No. 3526-V-91 was a "losing cause" for the
complainants because it was based on the expulsion of
the plaintiff therein from the Far Eastern University Faculty
Association (FEUFA) which was declared unlawful in the final
decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable
judgment in the Regional Trial Court is not imputable to [his]
mistake but rather imputable to the merits of the
case, i.e., thedecision in the Expulsion case wherein defendants
(complainants herein) illegally removed from the union (FEUFA)
membership Mr. Paulino Salvador. . . ." He further claims that the
complainants filed this case to harass him because he refused to
share his attorney's fees in the main labor case he had handled for
them. The respondent then prays for the dismissal of this complaint
for utter lack of merit, since his failure to file the answer was cured
and, even granting for the sake of argument that such failure
amounted to negligence, it cannot warrant his disbarment or
suspension from the practice of the law profession.
The complainants filed a Reply to the respondent's Comment.
Issues having been joined, we required the parties to inform us
whether they were willing to submit this case for decision on the
basis of the pleadings they have filed. In their separate compliance,
both manifested in the affirmative.
The facts in this case are not disputed.
Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro
Manas, and Trinidad Nordista were the President, Vice-President,
Treasurer, and Auditor, respectively, of the FEUFA. They allegedly
expelled from the union Paulino Salvador. The latter then
commenced with the Department of Labor and Employment (DOLE)
a complaint (NCR-OD-M-90-10-050) to declare illegal his expulsion
from the union.
In his resolution of 22 November 1990, Med-Arbiter Tomas
Falconitin declared illegal Salvador's expulsion and directed the
union and all its officers to reinstate Salvador's name in the roll of
union members with all the rights and privileges appurtenant
thereto. This resolution was affirmed in toto by the Secretary of
Labor and Employment.
Subsequently, Paulino Salvador filed with the Regional Trial
Court (RTC) of Valenzuela, Metro Manila, Branch 172, a complaint

against the complainants herein for actual, moral, and exemplary

damages and attorney's fees, under Articles 19, 20, and 21 of the
Civil Code. The case was docketed as Civil Case No. 3526-V-91.
As the complainants' counsel, the respondent filed a motion to
dismiss the said case on grounds of (1) res judicataby virtue of the
final decision of the Med-Arbiter in NCR-OD-M-90-10-050 and (2)
lack of jurisdiction, since what was involved was an intra-union
issue cognizable by the DOLE. Later, he filed a supplemental
motion to dismiss.
The trial court, per Judge Teresita Dizon-Capulong, granted the
motion and ordered the dismissal of the case. Upon Salvador's
motion for reconsideration, however, it reconsidered the order of
dismissal, reinstated the case, and required the complainants
herein to file their answer within a nonextendible period of fifteen
days from notice.
Instead of filing an answer, the respondent filed a motion for
reconsideration and dismissal of the case. This motion having been
denied, the respondent filed with this Court a petition for certiorari,
which was later referred to the Court of Appeals and docketed
therein as CA-G.R. SP No. 25834.
Although that petition and his subsequent motion for
reconsideration were both denied, the respondent still did not file
the complainants' answer in Civil Case No. 3526-V-91. Hence, upon
plaintiff Salvador's motion, the complainants were declared in
default, and Salvador was authorized to present his evidence exparte.
The respondent then filed a motion to set aside the order of default
and to stop the ex-parte reception of evidence before the Clerk of
Court, but to no avail.
Thereafter, the trial court rendered a decision ordering the
complainants herein to pay, jointly and severally, plaintiff Salvador
the amounts of P200,000.00 as moral damages; P50,000.00 as
exemplary damages or corrective damages; and P65,000.00 as
attorney's fees; plus cost of suit.
The complainants, still assisted by the respondent, elevated the
case to the Court of Appeals, which, however, affirmed in toto the
decision of the trial court.
The respondent asserts that he was about to appeal the said
decision to this Court, but his services as counsel for the
complainants and for the union were illegally and unilaterally
terminated by complainant Veronica Santiago.
The core issue that presents itself is whether the respondent
committed culpable negligence, as would warrant disciplinary
action, in failing to file for the complainants an answer in Civil Case
No. 3526-V-91 for which reason the latter were declared in default

and judgment was rendered against them on the basis of the

plaintiff's evidence, which was received ex-parte.
It is axiomatic that no lawyer is obliged to act either as adviser or
advocate for every person who may wish to become his client. He
has the right to decline employment, 1 subject, however, to Canon
14 of the Code of Professional Responsibility. Once he agrees to
take up the cause of a client, the lawyer owes fidelity to such cause
and must always be mindful of the trust and confidence reposed in
him. 2 He must serve the client with competence and
diligence, 3 and champion the latter's cause with wholehearted
fidelity, care, and devotion. 4 Elsewise stated, he owes entire
devotion to the interest of the client, warm zeal in the maintenance
and defense of his client's rights, and the exertion of his utmost
learning and ability to the end that nothing be taken or withheld
from his client, save by the rules of law, legally applied. 5 This
simply means that his client is entitled to the benefit of any and
every remedy and defense that is authorized by the law of the land
and he may expect his lawyer to assert every such remedy or
defense. 6 If much is demanded from an attorney, it is because the
entrusted privilege to practice law carries with it the correlative
duties not only to the client but also to the court, to the bar, and to
the public. A lawyer who performs his duty with diligence and
candor not only protects the interest of his client; he also serves
the ends of justice, does honor to the bar, and helps maintain the
respect of the community to the legal profession. 7
The respondent admits that it was his duty to file an answer in Civil
Case No. 3526-V-91. He justifies his failure to do so in this wise:
[I]n his overzealousness to question the Denial Order
of the trial court, 8 [he] instead, thru honest mistake
and excusable neglect, filed a PETITION
FOR CERTIORARI with the Honorable Court, docketed
as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No. 100983
was referred, dismissed the petition, he again
"inadvertently" failed to file an answer "[d]ue to honest
mistake and because of his overzealousness as stated
earlier. . . . "
In their Reply, the complainants allege that his failure to file an
answer was not an honest mistake but was "deliberate, malicious
and calculated to place them on the legal disadvantage, to their
damage and prejudice" for, as admitted by him in his motion to set
aside the order of default, his failure to do so was "due to volume
and pressure of legal work." 9 In short, the complainants want to
impress upon this Court that the respondent has given inconsistent
reasons to justify his failure to file an answer.

We agree with the complainants. In his motion for reconsideration

of the default order, the respondent explained his non-filing of the
required answer by impliedly invoking forgetfulness occasioned by
a large volume and pressure of legal work, while in his Comment in
this case he attributes it to honest mistake and excusable neglect
due to his overzealousness to question the denial order of the trial
court.
Certainly, "overzealousness" on the one hand and "volume and
pressure of legal work" on the other are two distinct and separate
causes or grounds. The first presupposes the respondent's full and
continuing awareness of his duty to file an answer which,
nevertheless, he subordinated to his conviction that the trial court
had committed a reversible error or grave abuse of discretion in
issuing an order reconsidering its previous order of dismissal of
Salvador's complaint and in denying the motion to reconsider the
said order. The second ground is purely based on forgetfulness
because of his other commitments.
Whether it be the first or the second ground, the fact remains that
the respondent did not comply with his duty to file an answer in
Civil Case No. 3526-V-91. His lack of diligence was compounded by
his erroneous belief that the trial court committed such error or
grave abuse of discretion and by his continued refusal to file an
answer even after he received the Court of Appeals' decision in
the certiorari case. There is no showing whatsoever that he further
assailed the said decision before this Court in a petition for review
under Rule 45 of the Rules of Court to prove his claim of
overzealousness to challenge the trial court's order. Neither was it
shown that he alleged in his motion to lift the order of default that
the complainants had a meritorious defense. 10 And, in his appeal
from the judgment by default, he did not even raise as one of the
errors of the trial court either the impropriety of the order of default
or the court's grave abuse of discretion in denying his motion to lift
that order.
Pressure and large volume of legal work provide no excuse for the
respondent's inability to exercise due diligence in the performance
of his duty to file an answer. Every case a lawyer accepts deserves
his full attention, diligence, skill, and competence, regardless of its
importance and whether he accepts it for a fee or for free.
All told, the respondent committed a breach of Canon 18 of the
Code of Professional Responsibility which requires him to serve his
clients, the complainants herein, with diligence and, more
specifically, Rule 18.03 thereof which provides: "A lawyer shall not
neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable."

The respondent's negligence is not excused by his claim that Civil

Case No. 3526-V-91 was in fact a "losing cause" for the
complainants since the claims therein for damages were based on
the final decision of the Med-Arbiter declaring the complainants' act
of expelling Salvador from the union to be illegal. This claim is a
mere afterthought which hardly persuades us. If indeed the
respondent was so convinced of the futility of any defense therein,
he should have seasonably informed the complainants thereof. Rule
15.05, Canon 15 of the Code of Professional Responsibility
expressly provides:
A lawyer, when advising his client, shall give a candid
and honest opinion on the merits and probable
results of the client's case, neither overstating nor
understanding the prospects of the case.
Then too, if he were unconvinced of any defense, we are
unable to understand why he took all the trouble of filing a
motion to dismiss on the grounds of res judicata and lack of
jurisdiction and of questioning the adverse ruling thereon
initially with this Court and then with the Court of Appeals,
unless, of course, he meant all of these to simply delay the
disposition of the civil case. Finally, the complainants were
not entirely without any valid or justifiable defense. They
could prove that the plaintiff was not entitled to all the
damages sought by him or that if he were so, they could ask
for a reduction of the amounts thereof.
We do not therefore hesitate to rule that the respondent is not free
from any blame for the sad fate of the complainants. He is liable for
inexcusable negligence.
WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and
ADMONISHED to be, henceforth, more careful in the performance of
his duty to his clients.
SO ORDERED.
Padilla, Bellosillo, Kapunan and Hermosisima Jr., JJ., concur.
A.C. No. 3923. March 30, 1993.
CONCORDIA B. GARCIA, complainant, vs. ATTY. CRISANTO L.
FRANCISCO, respondent.
SYLLABUS
1. LEGAL ETHICS; MISCONDUCT OF COUNSEL; VIOLATION OF
OATH NOT DELAY ANY MAN OR MONEY OR MALICE;
SUSPENSION FOR ONE YEAR FROM PRACTICE OF LAW FOR
GROSS ABUSE OF RIGHT OF RECOURSE TO THE COURTS BY
ARGUING A CAUSE THAT IS OBVIOUSLY WITHOUT MERIT.
The cause of the respondent's client is obviously without
merit. The respondent was aware of this fact when he

wilfully resorted to the gambits summarized above,

continuously seeking relief that was consistently denied, as
he should have expected . . . By grossly abusing his right of
recourse to the courts for the purpose of arguing a cause
that had been repeatedly rebuffed, he was disdaining the
obligation of the lawyer to maintain only such actions or
proceedings as appear to him to be just and such defenses
only as he believes to be honestly debatable under the law.
By violating his oath not to delay any man for money or
malice, he has besmirched the name of an honorable
profession and has proved himself unworthy of the trust
reposed in him by law as an officer of the Court . . . For this
serious transgression of the Code of Professional
Responsibility, he deserves to be sanctioned, not only as a
punishment for his misconduct but also as a warning to
other lawyers who may be influenced by his example.
Accordingly, he is hereby SUSPENDED for ONE YEAR from
the practice of law and from the enjoyment of all the rights
and privileges appurtenant to membership of the Philippine
bar.
RESOLUTION
PER CURIAM, p:
In a sworn complaint filed with the Court on October 6, 1992,
Concordia B. Garcia seeks the disbarment of Atty. Crisanto L.
Francisco.
On March 9, 1964, Concordia B. Garcia and her husband Godofredo,
the Dionisio spouses, and Felisa and Magdalena Baetiong leashed a
parcel of land to Sotero Baluyot Lee for a period of 25 years
beginning May 1, 1964. Despite repeated verbal and written
demands, Lee refused to vacate after the expiration of the lease.
Lee claimed that he had an option to extend the lease for another 5
years and the right of pre-emption over the property.
In this disbarment case, the complainant claims that Lee's counsel,
respondent Francisco, commenced various suits before different
courts to thwart Garcia's right to regain her property and that all
these proceedings were decided against Lee. The proceedings
stemmed from the said lease contract and involved the same
issues and parties, thus violating the proscription against forumshopping.
Respondent, in his comment, says that he inserted in defense of his
client's right only such remedies as were authorized by law.
The tangle of recourses employed by Francisco is narrated as
follows:

1. On March 29, 1989, Lee, through Francisco, filed a complaint

against Garcia and the other lessors for specific performance and
reconveyance with damages in the Regional Trial Court of Quezon
City. This was docketed as Civil Case No. Q-89-2118. On June 9,
1989, Garcia filed a motion to dismiss the complaint on the grounds
of failure to state a cause of action, laches and prescription. The
case was dismissed by Judge Felimon Mendoza on August 10, 1989.
2. On May 29, 1989, Garcia and the other lessors filed a complaint
for unlawful detainer against Lee in the Metropolitan Trial Court
of Quezon City. This was docketed as Civil Case No. 1455. Through
Francisco, Lee filed an answer alleging as special and affirmative
defense the pendency of Civil Case no. Q-89-2118 in the Regional
Trial Court of Quezon City. On September 5, 1989, Judge Marcelino
Bautista issued a resolution rejecting this allegation on the ground
that the issues before the two courts were separate and different.
3. On October 24, 1989, Lee, through Francisco, filed with the
Regional Trial Court of Quezon City a petition for certiorari and
prohibition with preliminary injunction against Judge Bautista,
Garcia and the other lessors. This was docketed as civil Case No. Q89-3833. In filing this petition, Francisco knew or should have
known that it violated the Rule on Summary Procedure prohibiting
the filing of petitions for certiorari, mandamus or prohibition
against any interlocutory order issued by the court.
Francisco claims that what he appealed to the Regional Trial Court
in Civil Case No. Q-89-3833 was the denial of his prayer for
dismissal of Civil Case No. 1455. This is not true. Civil Case Q-893833 was clearly a special civil action and not an appeal.
On November 13, 1989, Judge Abraham Vera issued an order
enjoining Judge Bautista from proceeding with the trial of the
unlawful detainer case. Upon motion of the complainant, however,
the injunction was set aside and Civil Case No. Q-89-3833 was
dismissed on January 9, 1990. Lee did not appeal.
4. On April 6, 1990, Lee through Francisco, filed a petition for
certiorari and prohibition with prayer for preliminary injunction with
the Court of Appeals against Judge Vera, Judge Singzon, Garcia and
the other lessors. Docketed as CA G.R. Sp No. 20476, the petition
assailed the January 9, 1990 order of Judge Vera dismissing Civil
Case No. Q-89-3833. On May 31, 1989, the petition was denied.
5. On June 14, 1990, Judge Singzon decided Civil Case no. 1455 in
favor of complainant Garcia and the other lessors. Lee did not
appeal. Instead, on, June 21, 1990, through Francisco again, he filed
a petition against Judge Singzon and the other lessors for certiorari
and annulment of the decision in Civil Case No. 1455
and damageswith prayer for issuance of preliminary injunction. This

was docketed as Civil case No. 90-5852 in the Regional Trial Court
of Quezon City, Branch 98, presided by Judge Cesar C. Paralejo.
In Francisco's comment before us, he alleges that Civil Case No. Q90-5852 is an appeal from the unlawful detainer case. Again, he
lies. Civil Case No. Q-90-5852 was a specified civil action and not
an appeal.
On July 2, 1990, Garcia's group filed an Omnibus Motion to Dismiss
Civil Case No. 90-5852. On July 13, 1990, Judge Paralejo issued an
order enjoining Judge Singzon from enforcing the decision in that
case. Garcia attacked this order in a petition for certiorari and
prohibition with prayer for preliminary injunction docketed as CA
Sp. No. 22392. The petition was granted by the Court of Appeals on
September 19, 1991, on the ground that the judgment in the
unlawful detainer case had come final and executory as June 30,
1990.
6. On September 24, 1991, Garcia filed a motion for execution in
the unlawful detainer case. On September 27, 1991, Lee, through
Francisco, filed a motion to inhibit Judge Singzon and to defer the
hearing of the motion. A writ of execution was nonetheless issued
by Judge Singzon on October 8, 1991.
7. Two days later, Lee, through Francisco, filed with the Supreme
Court a petition for certiorari with preliminary injunction and
temporary restraining order against the Court of Appeals, Judge
Singzon, Garcia and the other lessors. This Court denied the
petition on January 27, 1992, and reconsideration on April 8, 1992.
8. Finally, Lee, still through Francisco, filed a petition for certiorari
with preliminary injunction against Judge Singzon, Garcia and the
other lessors in the Regional Trial Court of Quezon City to set aside
and declare the writs of execution in Civil Case No. 1455. This was
dismissed on August 4, 1992, and Lee, through Francisco, filed a
motion for reconsideration. According to Francisco, he was relieved
as counsel while this motion was pending.
A lawyer owes fidelity to the cause of his client but not at the
expense of truth and the administration of justice.
The cause of the respondent's client in obviously without merit. The
respondent was aware of this fact when he wilfully resorted to the
gambits summarized above, continuously seeking relief that was
consistently denied, as he should have expected. He thereby added
to the already clogged dockets of the courts and wasted their
valuable time. He also caused much inconvenience and expense to
the complainant, who was obliged to defend herself against his
every move.
By grossly abusing his right of recourse to the courts for the
purpose of arguing a cause that had been repeatedly rebuffed, he
was disdaining the obligation of the lawyer to maintain only such

actions or proceedings as appear to him to be just and

such defense only as he believes to be honestly debatable under
the law. By violating his oath not to delay any man for money or
malice, he has besmirched the name of an honorable profession
and has proved himself unworthy of trust reposed in him by law as
an officer of the Court.
Atty. Crisanto l. Francisco took his oath as a lawyer on March 2,
1956. Considering his age and experience in the practice of the
laws, he should have known better than to trifle with it and to use it
as an instrument for harassment of the complainant and the
misuse of judicial processes. For this serious transgression of the
Code of Professional Responsibility, he deserves to be sanctioned,
not only as punishment for his misconduct but also as a warning to
other lawyers who may be influenced by his example.
Accordingly, he is hereby SUSPENDED for ONE YEAR from the
practice of law and from the enjoyment of all the rights
and privileges appurtenant to membership in the Philippine bar.
Let a copy of this Resolution be served immediately on the
respondent and circularized to all courts and the Integrated Bar of
the Philippines.
SO ORDERED.
Cruz, Grio-Aquino, Bellosillo and Quiason, JJ., concur.
G.R. No. 98149 September 26, 1994
JOSE V. DEL ROSARIO, petitioner,
vs.
HON. COURT OF APPEALS and DE DIOS MARIKINA
TRANSPORTATION CO., INC., respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioner.
Orlando B. Braga for private respondent.
VITUG, J.:
Petitioner suffered physical injuries, requiring two (2) major
operations, when he fell from, and then was dragged along the
asphalted road by, a passenger bus operated by private
respondent transportation company. The incident occurred when
the bus driver bolted forward at high speed while petitioner was
still clinging on the bus door's handle bar that caused the latter to
lose his grip and balance. The refusal of private respondent to
settled petitioner's claim for damages constrained petitioner to file,
on 26 June 1985, a complaint for damages against private
respondent.
After the reception of evidence, the trial court, on 11 December
1989, rendered its decision, the dispositive portion reading thusly:

WHEREFORE, judgment is hereby rendered

dismissing defendant De Dios Marikina
Transportation Co., Inc.'s counterclaim for lack of
merit and ordering said defendant to pay plaintiff
Jose V. Del Rosario: (a) the sum of P76,944.41, as
actual and compensatory damages; (b) the sum of
P15,000.00, as moral and exemplary damages; and
(c) the sum of P33,641.50, as attorney's fees, a s well
as to pay the costs of suit; and, as regards the thirdparty complaint herein, ordering third-party
defendant First Quezon City Insurance Co., Inc. to
indemnify third-party plaintiff
De Dios Marikina Transportation Co., Inc. in the sum
of P12,000.00, with interest thereon at the legal rate
from date of filing of the third-party complaint on
August 20, 1985, until full payment thereof. Further,
there being no satisfactory warrant, therefor, the
Court hereby dismisses the rest of the claims in the
complaint and third-party complaint herein.
IT IS SO ORDERED.
On appeal to it, the Court of Appeals affirmed in toto the findings of
fact of the trial court, as well as the grant to petitioner of damages,
but it reduced the award for attorney's fees from P33,641.50 to
P5,000.00. Petitioner's motion for reconsideration questioning the
reduction of attorney's fees was denied by the appellate court.
Hence, this petition raising this sole issue.
We see merit in the petition.
There is no question that a court may, whenever it deems it just
and equitable, allow the recovery by the prevailing party
of attorneys fees. 1 In determining the reasonableness of such fees,
this Court in a number of cases 2has provided various criteria
which, for convenient guidance, we might collate thusly:
a) the quantity and character of the services
rendered;
b) the labor, time and trouble involved;
c) the nature and importance of the litigation;
d) the amount of money or the value of the property
affected by the controversy;
e) the novelty and difficulty of questions involved;
f) the responsibility imposed on counsel;
g) the skill and experience called for in the
performance of the service;
h) the professional character and social standing of
the lawyer;

i) the customary charges of the bar for similar

services;
j) the character of employment, whether casual or for
establishment client;
k) whether the fee is absolute or contingent (it being
the rule that an attorney may properly charge a
higher fee when it is contingent than when it is
absolute); and
1) the results secured.
In this instance, the complaint for damages was instituted by
petitioner in June 1985, following the refusal of private respondent
to settle petitioner's claim, and the decision thereon was
promulgated by the court a quo only in December 1989 or about
four years and six months later. Several pleadings were filed and no
less than twenty appearances were made by petitioner's counsel,
not counting the various other pleadings ultimately filed with the
Court of Appeals and now before this Court. Given the nature of the
case, the amount of damages involved, and the evident effort
exerted by petitioner's counsel, the trial court's award of attorney's
fees for P33,641.50 would appear to us to be just and reasonable.
WHEREFORE, the instant petition is hereby GRANTED, and the
decision of the Court of Appeals is MODIFIED by REINSTATING the
trial court's award of attorney's fees.
SO ORDERED
Feliciano, Romero, and Melo, JJ., concur.
Bidin, J., is on leave.
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT
OF FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA
BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE
GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN
and ANTONIO R. DE GUZMAN, respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents de Guzman.
GRIO-AQUINO, J.:
The issue in this case is whether or not an attorney who was
engaged on a contingent fee basis may, in order to collect his fees,
prosecute an appeal despite his client's refusal to appeal the
decision of the trial court.

On September 7, 1963, the petitioner, a practicing attorney,

entered into a written agreement with the private respondent Rosa
del Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a
piece of real property at Sales Street, Quiapo, Manila, was
bequeathed to Del Rosario. It was agreed that petitioner's contigent
fee would be thirty-five per cent (35%) of the property that Rosa
may receive upon the probate of the will (Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste performed the
following services as Del Rosario's counsel:
(1) Thoroughly researched and studied the law
on probate and succession;
(2) Looked for and interviewed witnesses, and took
their affidavits;
(3) Filed the petition for. probate is
Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario,
informing him that she was terminating his services as
her counsel due to "conflicting interest." This consisted, according
to the letter, in petitioner's moral obligation to protect the interest
of his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and
the other parties in the probate proceeding intended to eject as
lessee of the property which was bequeathed to Del Rosario under
the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to
Protect His Rights to Fees for Professional Services." (Annex "B", p.
60, Rollo.)
In an order dated November 12, 1965 the trial court denied his
motion on the ground that he had "not filed a claim for attorney's
fees nor recorded his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of
Claim for Attorney's Fees and Recording of Attorney's Lien,' which
was noted in the court's order of December 20, 1965 (Annexes "D"
and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had become
final, petitioner continued to receive copies of the court's orders, as
well the pleadings of the other parties in the case. He also

continued to file pleadings. The case was submitted for decision

without the respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for
Probate" alleging that Del Rosario waived her rights to the devise in
her favor and agreed that the De Guzman brothers and sisters who
opposed her petition for probate, shall inherit all the properties left
by the decedent. (Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to
withdraw the petition for being contrary to public policy (Annex "G",
pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will,
holding that the legal requirements for its validity were not satisfied
as only two witnesses testified that the will and the testatrix's
signature were in the handwriting of Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on
appeal. The private respondents filed a motion to dismiss the
appeal on the ground that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming
that he has a direct and material interest in thedecision sought to
be reviewed. He also asked that he be substituted as partypetitioner, in lieu of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied
petitioner's motion for substitution.
The petitioner filed in the Court of Appeals a petition
for mandamus (CA-G.R. No. 41248) praying that the trial court be
ordered to give due course to his appeal and to grant his motion for
substitution.
On May 22, 1968, the Court of Appeals dismissed the petition for
being insufficient in form and substance as the petitioner did not
appear to be the proper party to appeal the decision in Special
Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner
appealed by certiorari to this Court, assigning the following errors
against the Court of Appeals' resolution:
1. The Court of Appeals erred in finding that the
petitioner appears not to be the proper party to
appeal the decision in Sp. Proc. No. 58325 of the
Court of First Instance of Manila.
2. Assuming the petitioner's right of appeal is
doubtful, the Court of Appeals erred in dismissing his
petition for mandamus; and
3. The Court of Appeals erred in not reversing the
decision in Sp. Proc. No. 58325 denying the probate

of the holographic will of the late Maxima C. Reselva,

said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue
of his contract of services with Del Rosario, heis a creditor of the
latter, and that under Article 1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to
the prejudice of his own creditors, the latter may
petition the court to authorize them to accept it in
the name of the heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits.
The excess, should there be any, shall in no case
pertain to the renouncer, but shall be adjudicated to
the persons to whom, in accordance with the rules
established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of
35% thereof the devise in her favor (which she in effect repudiated)
to protect his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does
not apply to this case. That legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The
payment of his fees is contingent and dependent upon the
successful probate of the holographic will. Since the petition for
probate was dismissed by the lower court, the contingency did not
occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir.
Rosa del Rosario is not a legal heir of the late Maxima C. Reselva.
Upon the dismissal of her petition for probate of the decedent's will,
she lost her right to inherit any part of the latter's estate. There is
nothing for the petitioner to accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil.
1427, that "the contract (for contingent attorney's fees) neither
gives, nor purports to give, to the appellee (lawyer) any right
whatsoever, personal or real, in and to her (Mrs. Harden's)
aforesaid share in the conjugal partnership. The amount thereof is
simply a basis for thecomputation of said fees."
The Court of Appeals did not err in dismissing the petition
for mandamus, for while it is true that, as contended by the
petitioner, public policy favors the probate of a will, it does not
necessarily follow that every will that is presented for probate,
should be allowed. The law lays down procedures which should be
observed and requisites that should be satisfied before a will may
be probated. Those procedures and requirements were not followed
in this case resulting in the disallowance of the will. There being no

valid will, the motion to withdraw the probate petition was

inconsequential.
Petitioner was not a party to the probate proceeding in the lower
court. He had no direct interest in the probate of the will. His only
interest in the estate is an indirect interest as former counsel for a
prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had
occassion to rule that one who is only indirectly interested in a will
may not interfere in its probate. Thus:
... the reason for the rule excluding strangers from
contesting the will, is not that thereby the court
maybe prevented from learning facts which would
justify or necessitate a denial of probate, but rather
that the courts and the litigants should not be
molested by the intervention in the proceedings of
persons with no interest in the estate which would
entitle them to be heard with relation thereto. (Paras
vs. Narciso, 35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:
We are of the opinion that the lower court did not err
in holding that notice of an attorney's lien did not
entitle the attorney-appellant to subrogate himself in
lieu of his client. It only gives him the right to collect
a certain amount for his services in case his client is
awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of merit.
Costs against the petitioner.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ, concur.
G.R. No. 117438 June 8, 1995
RAUL SESBREO, petitioner,
vs.
HON, COURT OF APPEALS, and PATRICIA GIAN, SOTERO
BRANZUELA, ANDRES C. YPIL, SANTIAGO BACAYO, BRIGIDO
COHITMINGAO, VICTORINO DINOY, GUILLERMO MONTEJO
and EMILIO RETUBADO,respondents.
ROMERO, J.:
Of interest to all law practitioners is the issue at bench, namely,
whether the Court of Appeals had the authority to reduce the
amount of attorney's fees awarded to petitioner Atty. Raul H.
Sesbreo, notwithstanding the contract for professional services
signed by private respondents.
The antecedent facts of the case follow.

Fifty-two employees sued the Province of Cebu and then Governor

Rene Espina for reinstatement and backwages. 1 Herein petitioner,
Raul H. Sesbreo, replaced the employees' former counsel Atty.
Catalino Pacquiao.
Thirty-two of the fifty-two employees signed two documents
whereby the former agreed to pay petitioner 30% asattorney's fees
and 20% as expenses to be taken from their back salaries.
On September 12, 1974, the trial court rendered a decision
ordering the Province of Cebu to reinstate the petitioning
employees and pay them back salaries. Said decision became final
and executory after it was affirmedin toto by the Court of Appeals
and the petition to review the appellate decision, denied by this
Court in 1978. 2
A compromise agreement was entered into by the parties below in
April 1979 whereby the former employees waived their right to
reinstatement among others. Likewise, pursuant to said
compromise agreement, the Province of Cebu released
P2,300,000.00 to the petitioning employees through petitioner as
"Partial Satisfaction of Judgment." The amount represented back
salaries, terminal leave pay and gratuity pay due to the employees.
Sometime November and December 1979, ten employees, herein
private respondents, 3 filed manifestations before the trial court
asserting that they agreed to pay petitioner 40% to be
taken only from their back salaries.
The lower court issued two orders, with which petitioner complied,
requiring him to release P10,000.00 to each of the ten private
respondents and to retain 40% of the back salaries pertaining to
the latter out of the P2,300,000.00 released to him.
On March 28, 1980, the trial court fixed petitioner's attorney's fees
at 40% of back salaries, terminal leave, gratuity pay and retirement
benefits and 20% as expenses, or a total of 60% of all monies paid
to the employees.
Private respondents' motion for reconsideration was granted and on
June 10, 1980, the trial court modified the award after noting that
petitioner's attorney's lien was inadvertently placed as 60% when it
should have been only 50%. The dispositive portion of the order
reads:
WHEREFORE, in view of all the foregoing the order of
this Court fixing 60% as attorney's fee[s] of Atty.
Sesbreo should be 50% of all monies which the
petitioners (Suico, et al.) may receive from
theProvincial Government.
Obviously not satisfied with the attorney's fees fixed by the trial
court, petitioner appealed to the Court of
Appealsclaiming additional fees for legal services before

the Supreme Court, reimbursement for expenses and a clear

statement that the fee be likewise taken from retirement pay
awarded to his clients. Unfortunately, the respondent appellate
court did not agree with him as the generous award was further
reduced. 4
The appellate court noted that in this jurisdiction, attorney 's fees
are always subject to judicial control and deemed the award of 20%
of the back salaries awarded to private respondents as a fair,
equitable and reasonable amount of attorney's fee. The decretal
portion of the decision reads:
WHEREFORE, the questioned order is MODIFIED. The
attorney's fees due Atty. Raul Sesbreo is fixed at an
amount equivalent to 20% of all back salaries which
the Province of Cebu has awarded to herein 10
petitioners. 5
Hence this petition for review where he claims that attorney's fees
amounting to 50% of all monies awarded to his clients as
contingent fees should be upheld for being consistent with
prevailing case law and the contract ofprofessional
services between the parties. He adds that since private
respondents did not appeal, they are not entitled to affirmative
relief other than that granted in the regional trial court.
We find no reversible error in the decision of the Court of Appeals
and vote to deny the petition.
Respondent court found that the contract of professional services
entered into by the parties 6 authorized petitioner to take
a total of 50% from the employees' back salaries only. The trial
court, however, fixed the lawyer's fee on the basis of all monies to
be awarded to private respondents.
Fifty per cent of all monies which private respondents may receive
from the provincial government, according to the Court of Appeals,
is excessive and unconscionable, not to say, contrary to the
contract of professional services. 7 After considering the facts and
the nature of the case, as well as the length of time and effort
exerted by petitioner, respondent court reduced the amount of
attorney's fees due him.
It is a settled rule that what a lawyer may charge and receive as
attorney's fees is always subject to judicial control.8 A lawyer is
primarily an officer of the court charged with the duty of assisting
the court in administering impartial justice between the parties.
When he takes his oath, he submits himself to the authority of the
court and subjects his professional fees to judicial control. 9
As stated by the Court in the case of Sumaong v. Judge: 10
A lawyer is not merely the defender of his client's
cause and a trustee of his client in respect of the

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 are 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
professional fees. 11
In the case at bench, the parties entered into a contingent fee
contract. The Agreement provides:
WE, the undersigned petitioners in the case
of POLICRONIO BELACHO, ET AL., VS. RENE ESPINA
ET AL., hereby agree to pay Atty. Sesbreo, our
lawyer, the following to be taken from our back
salaries:
30% as attorney's fees
20% as expenses
That we enter into agreement in order to be paid our
back salaries as early as possible and so that we may
be reinstated as early as possible.
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 unreasonable unconscionable. 12
A contingent fee arrangement is valid in this jurisdiction 13 and is
generally recognized as valid and binding but must be laid down in
an express contract. 14 The amount of contingent fees agreed upon
by the parties is subject to the stipulation that counsel will be paid
for his legal services only if the suit or litigation prospers. A much
higher compensation is allowed as contingent fees in consideration
of the risk that the lawyer may get nothing if the suit fails.
Contingent fee contracts are under the supervision and close
scrutiny of the court in order that clients may be protected from
unjust charges. 15 Its validity depends in large measure on the
reasonableness of the stipulated fees under the circumstances of
each case. 16
When the courts find that the stipulated amount is excessive or the
contract is unreasonable or unconscionable, or found to have been
marred by fraud, mistake, undue influence or suppression of facts

on the part of the attorney, public policy demands that said

contract be disregarded to protect the client from unreasonable
exaction. 17
Stipulated attorney's fees are unconscionable whenever the
amount is by far so disproportionate compared to the value of the
services rendered as to amount to fraud perpetrated upon the
client. This means to say that the amount of the fee contracted for,
standing alone and unexplained would be sufficient to show that an
unfair advantage had been taken of the client, or that a legal fraud
had been perpetrated on him. 18
The decree of unconscionability or unreasonableness of a stipulated
amount in a contingent fee contract, will not however, preclude
recovery. It merely justifies the court's fixing a reasonable amount
for the lawyer's services.
Courts may always ascertain, if the attorney's fees are found to be
excessive, what is reasonable under the circumstances. Quantum
meruit, meaning "as much as he deserves," is used as the basis for
determining the lawyer's professional fees in the absence of a
contract. 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, are considered in determining his fees. 19
There is nothing irregular about the respondent court's finding that
the 50% fee of petitioner is unconscionable As aptly put by the
court:
It effectively deprives the appellees of a meaningful
victory of the suit they have passionately pursued.
Balancing the allocation of the monetary award, 50%
of all monies to the lawyer and the other 50% to be
allocated among all his 52 clients, is too lop-sided in
favor of the lawyer. The ratio makes the practice of
law a commercial venture, rather than a noble
profession.
. . . Also, the 52 employees who are the plaintiffs in
the aforementioned civil case were dismissed from
employment, their means of livelihood. All 52 hired
claimant-appellant as counsel so that they could be
reinstated and their source of income restored. It
would, verily be ironic if the counsel whom they had
hired to help would appropriate for himself 50% or
even 60% of the total amount collectible by these

employees. Here is an instance where the courts

should intervene. 20
Considering the nature of the case, which is a labor case, the
amount recovered and petitioner's participation in the case, an
award of 50% of back salaries of his 52 clients indeed strikes us as
excessive. Under the circumstances, a fee of 20% of back salaries
would be a fair settlement in this case. In any event, this award
pertains only to the ten private respondents herein. Petitioner has
already been compensated in the amount of 50% of all monies
received, by the rest of his clients in the case below.
WHEREFORE, in view of the foregoing, the petition is DENIED and
the appealed decision AFFIRMED.
SO ORDERED.
Melo, Vitug and Francisco, JJ., concur.
Feliciano, J., is on leave.
G.R. No. L-67970 January 15, 1988
JOSE ABROGAR and JUANA DESEAR, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, SOCORRO DESEAR and
BRIGIDA DESEAR, respondents.
SARMIENTO, J.:
This is a Petition for Review on certiorari of the Decision of the then
Intermediate Appellate Court, 1 now Court of Appeals, affirming in
toto the decision of the trial court which annulled a sheriff sale.
The petitioners and private respondents were judgment plaintiffs
and defendants, respectively, in a civil case 2decided by the trial
court and affirmed by the appellate court. For failure of the private
respondents to satisfy a final and executory judgment in the said
civil case amounting to P2,553.00 only, their two parcels of land
with a combined market value of P75,000.00, were levied on
execution and advertised for public sale by the Provincial
Sheriff. 3 The auction sale was scheduled for March 27, 1971 but
the same did not push through because the trial court, upon motion
of private respondent Socorro Desear, issued an order on March 26,
1971, or one day before the date fixed, postponing the auction sale
on condition that the publication fees would be paid by the movant.
The movant did not pay as ordered. Instead of proceeding with the
auction sale on March 27, 1971, considering that there was no valid
postponement, the condition thereof not having been complied
with, the Provincial Sheriff of Pangasinan nevertheless held the
auction almost four months later, on July 16, 1971, when the two
parcels of land were sold, for, as earlier stated, P2,553.00 only.

Subsequently, a Sheriffs Certificate of Sale was issued. There was

no showing that private respondent Socorro Desear agreed to the
July 16, 1971 auction sale. However, it is indisputable that there
was neither new notice nor new publication of the said auction
sale. 4
The trial court ruled that the Sheriffs Final Sale was null and void for
lack of notice and publication and awarded attorney's fees in the
amount of P2,000.00 in favor of the private respondents. 5
Now before us, the petitioners assigned several errors of the
respondent appellate court. We summarize these assigned errors
into two, to wit: (1) in ruling that there was no valid postponement
of the date of the auction sale originally set for March 27, 1971;
and (2) in awarding attorney's fees of P2,000.00 in the absence of
any prayer and legal bases therefor. 6
As correctly pointed out by the respondent court (and the trial
court), the proper notice and publication in a newspaper was made
for the sale at public auction scheduled for March 27, 1971. On
motion, however, of private respondents, the trial court in an Order
dated March 26, 1971, directed the sale set for March 27, 1971
postponed provided the movant would pay the publication fees,
otherwise the public auction would continue at a date to be
designated by the Sheriff. The movant did not pay the publication
fees hence there was no postponement of the public auction sale
since the condition precedent or suspensive condition (that of
paying the publication fees) was not complied with. 7 There was
therefore no valid postponement of the public auction sale. And
there was no written consent of debtor and creditor and neither
was there any agreement in writing by the parties authorizing the
sheriff or the officer making the sale to adjourn the same "to any
date agreed upon in writing by the parties." 8
The public auction sale set for March 27, 1971, should have been
held considering that the said schedule complied with all the
requirements of law regarding a public sale, including notice and
publication. The officer may adjourn the sale from day to day if it is
necessary to do so for lack of time to complete the sale on the date
fixed in the notice. 9 But he may not adjourn to another date unless
with the written consent of the parties. 10 This was precisely the
point of the appellate court when it stressed the fact that there was
no written agreement between the debtor and thecreditor to
postpone the sale, and in fact there was no sale held on the
scheduled date 11 to warrant the application of Section 24, Rule 39
of the Revised Rules of Court.
Considering, therefore, that there was no valid postponement of the
original date of the auction sale on March 27, 1971, "then the
alleged public auction sale on July 16, 1971 or close to four months

after the original date of sale on March 27, 1971 without the proper
notice and publication is null and void" as correctly pointed out by
the respondent court. 12
The second issue raised by the petitioners is meritorious.
There is neither an allegation nor evidence to support the award of
P2,000.00 by way of attorney's fees in favor of private respondents.
The complaint does not pray for attorney's fees. 13 Even the
transcript of stenographic notes in the trial does not contain any
testimony to support an award of attorney's fees. 14 As succinctly
put, the claim for attorney's fees was neither pleaded nor proved !
The exercise of judicial discretion in the award of attorney's fees
under Article 2208 (ii) of the New Civil Code demands a factual,
legal, and equitable justification. Without such justification, the
award is a conclusion without a premise, its basis being improperly
left to speculation and conjecture. 15
Attorney's fees are recoverable not as a matter of right. 16 It is the
import of Article 2208 that the award of attorney's fees is an
exception and that the decision must contain an express finding of
fact to bring the case within the exception and justify the grant of
attorney's fees. "Just and equitable" under paragraph 11, Article
2208, New Civil Code is not a matter of feelings, but
demonstration. 17 The reason for the award of attorney's fees must
be stated in the text of the court's decision, otherwise, if it is stated
only in the dispositive portion of the decision, the same must be
disallowed on appeal. 18
In the light of all the foregoing, the award of attorney's fees in favor
of the private respondents in the case before us has no basis.
Hence, attorney's fees must be disallowed.
WHEREFORE, the Decision of the respondent court declaring null
and void the public auction sale on July 16, 1971 for lack of notice
and publication, is hereby AFFIRMED. However, the award of
attorney's fees is REVERSED. Costs against petitioners.
This Decision is IMMEDIATELY EXECUTORY.
Yap, Melencio-Herrera, Paras and Padilla, JJ., concur.

G.R. No. 97255 August 12, 1994

SOLID HOMES, INC., petitioner,
vs.
HON. COURT OF APPEALS, INVESTCO, INC., ANGELA PEREZ
STALEY, and ANTONIO PEREZ, respondents.

Rene A. Diokno for petitioner.

RESOLUTION
VITUG, J.:
An action for collection of sums of money, damages and attorney's
fees was filed with the Regional Trial Court(Civil Case No. 40615) of
Pasig by private respondents Investco, Angela Perez Staley and
Antonio Perez Jr. against petitioner Solid Homes, Inc.
Private respondents averred that, on 07 September 1976, they
sold, under an agreement entitled "contract to selland to buy," to
Solid Homes six (6) parcels of land in Quezon City and Marikina,
with an area of 704,443 sq.m., for a total selling price of
P10,211,075.00 payable (in accordance with paragraph 1 thereof),
as follows:
a) P100,000.00, Philippine Currency, as part down
payment upon signing and execution of this contract
receipt of which in full is hereby acknowledged;
b) P2,042,215.00, Philippine Currency, as
down payment payable on the following dates:
1 July 22, 1977
P400,000.00
2 October 22, 1977
711,107.50
3 January 22, 1978
711,107.50
It is hereby agreed that the above down payment
included the first down payment of P199,000.00.
Should the FIRST PARTY obtain titles to the properties
above-described after July 22, 1977, the due dates of
the down payment and all subsequent payments on
the balance shall be adjusted accordingly.
c) The balance of P8,188,860.00 shall be payable in
ten (10) semi-annual installments for a period of five
(5) years and shall earn interest at the rate of twelve
(12%) per annum, the first installment to be due on
July 22, 1978. The installment due together with the
Schedule of Payments attached hereto as Schedule
"A" and made an integral part of this contract (Exh.
A). 1
The second paragraph of Exhibit "A" stipulated that should
Solid Homes fail to pay any of the installments on their
respective due dates, an interest of one percent (1%) per month on
the defaulted amount would be paid for up to two months or prorata thereof; thereafter, should the installment due, as well as the
interest thereon, still remain unpaid, the entire balance of

the purchase price would then become immediately due and

demandable. Such due and demandable sum would be payable
within thirty (30) days, counted from the expiration of the 2-month
period, without further need for judicial action.
Private respondents asserted that Solid Homes violated the terms
of the agreement by refusing to pay the balance of P4,800,282.91
and by failing to negotiate a settlement with the tenants and
squatters of the property despite its receipt from Investco of
P350,000.00 for that specific purpose.
The trial court rendered judgment on 14 February 1985; the
dispositive portion read:
WHEREFORE, judgment is hereby rendered ordering
the defendant to pay the plaintiffs:
1) The amount of P4,800,282.91 with interest thereof
at the rate of one percent per month from February
23, 1981, until fully paid;
2) The amount of P99,559.00 representing cost
of science and transfer taxes which defendant
credited to its account with interest at the legal rate
from the filing of the complaint;
3) The amount of P250,000.00 to cover
attorney's fees and litigation expenses. 2
On appeal, the Court of Appeals (CA-G.R. CV No. 13400), modified
the trial court's judgment and rendered its own decision, dated 21
January 1991, resolving thusly:
PREMISES CONSIDERED, the judgment of the trial
court is hereby modified by ordering defendantappellant to pay plaintiff the amount of
P4,800,282.91 with interest thereon at the rate of
one percent per month from March 22, 1982. The
amount of attorney's fees is hereby reduced from
P250,000.00 to P50,000.00. The decision is
AFFIRMED in all other aspects. 3
In the instant petition for review, petitioner Solid Homes argues (a)
that the Court of Appeals should not have awarded attorney's fees,
there being an absence of any special finding of fact to justify such
award, and (b) that it erred in declaring due and demandable the
entire unpaid balance still owing to private respondents.
The Second Division of this Court required respondents to comment
on the petition in its Resolution of 22 April 1991. Meanwhile, Atty.
Alejandro Barin withdrew as counsel for respondents Investco, Inc.,
Angela Perez Staley and Antonio Perez, Jr. 4 We required private
respondents to submit the name and address of their new counsel;
to this day, no compliance has yet been made. In our resolution,
dated 01 December 1993, we required the parties to move in the

premises and to advise the Court whether "supervening events

may have rendered this case moot and academic." 5
Petitioner submitted its compliance and manifested thusly:
In the meantime, on April 15, 1985 before judgment
was rendered by the RTC in Civil Case No. 40615
Investco, Inc. (respondent herein) sold the very same
parcels of land involved in said case, in favor of
Armed Forces of the Philippines Mutual Benefit
Association, Inc. (AFPMBAI)
Solid Homes, Inc. (herein petitioner) filed Civil Case
No. Q-46570 RTC Quezon City entitled 'Solid Homes,
Inc., plaintiff versus AFPMBAI, Investco, Inc. and the
Register of Deeds of Quezon City covering titles
registered in Quezon City and Civil Case No. 52999
Solid Homes, Inc., plaintiff versus AFPMBAI, Investco,
Inc., and Register of Deeds for Pasig covering titles
registered in Pasig, Metro Manila, both for
nullification of the said second deed of sale over the
same properties involved in the instant case.
Quezon City RTC Civil Case No. 46570 was decided in
favor of plaintiffs, Solid Homes, Inc.; on appeal, the
Court of Appeals (CA G.R. No. 22365) reversed the
decision; same was elevated to the Supreme Court
where it is pending in SC G.R. No. 100437.
Pasig RTC, Civil Case No. 52999 was decided in favor
of plaintiff Solid Homes, Inc.; defendants appealed to
the Court of Appeals (CA G.R. No. 27398), which
affirmed the RTC Decision; on the main cause of
action Petition for Review by this to this Honorable
Court is pending under G.R. No. 104769.
Under the circumstances, herein petitioner, in
compliance with the Resolution dated December 1,
1993, hereby manifests that supervening events
since the Petition herein was filed has not rendered
this case as moot and academic, considering that the
issue involved is the amount to be paid in SOLID
HOMES, INC. as balance on the consideration of the
original sale by Investco, Inc. to it and the
concomitant transfer of titles to the latter upon
payment thereof, whereas in G.R. No. 100437 and
G.R. No. 104769, the issue is whether the second
buyer AFPMBAI had actual or constructive notice of
the prior sale by Investco, Inc. to herein Petitioner,
Solid Homes, Inc. 6

As of this late date, the Court has yet to hear from private
respondents. Given the premises, and in order to permit this case
to be finally resolved and terminated, the required comment on the
petition for review should now be, as it is hereby, dispensed with.
Article 2208 of the Civil Code allows attorney's fees to be awarded
by a court when its claimant is compelled to litigate with third
persons or to incur expenses to protect his interest by reason of an
unjustified act or omission of the party from whom it is sought.
While judicial discretion is here extant, an award thereof demands,
nevertheless, a factual, legal or equitable justification. The matter
cannot and should not be left to speculation and conjecture (Mirasol
vs. De la Cruz, 84 SCRA 337; Stronghold Insurance Company Inc.
vs. Court of Appeals, 173 SCRA 619).
In the case at bench, the records do not show enough basis for
sustaining the award for attorney's fees and to adjudge its payment
by petitioner. On the contrary, the appellate court itself has found
that petitioner's act of withholding payment could not be said to be
all that unjustified. The disagreement of the parties on the
demandability of the amount still due and the accrual date of
interest has persisted largely because of supervening
circumstances and the perceived inexplicitness of the contract
itself. The decision of the appellate court, has, in fact, reversed that
of the trial court on the imposition of interest from 23 February
1981, thus upholding, which we similarly find to be in order, the
position of petitioner that the accrual dated should instead start
only on 28 March 1982.
Relative to the demandability of the entire unpaid balance, we
agree with, and so adopt as our own that of respondent court; viz:
The amount actually paid on account of the contract
to buy and sell (Exh. A or 1) is not an area of
controversy in the first cause of action. The sum of
P2,042,215.00 corresponding to the down payment,
as well as P4,084,430.00 with respect to the first four
semi-annual installments and a portion of the fifth
installment, had been received making a total of
P6,126,645.00. It is conceded that a balance of
P4,800,282.91 is left unpaid. The dispute is with
respect to the period when defendant had defaulted
and, consequently, when payment of interest shall
begin. The plaintiffs claim that said period should
start on February 23, 1981; while the defendant
contends that the period must be adjusted should
the titles be obtained by the plaintiff corporation
after July 22, 1977, as provided in Par. 1(b) of the
contract to sell and to buy. Considering that titles

were actually transferred to Investco, Inc. between

March 21 to March 28, 1979, the defendant avers
that the original schedule of payment must not be
followed and the 5th installment shall only be due on
March 22, 1982.
xxx xxx xxx
It is undisputed that appellant Solid Homes had made
a total payment of P6,126,645.00 leaving a balance
of P4,800,282.91, which refers to the 6th to the 10th
installments. Of the 5th installment due on July 22,
1980, the following payments were made by
appellant:
Oct. 30, 1980 to Nov. 10, 1980
P150,000.00
Nov. 18, 1980 to Dec. 10, 1980
270,000.00
Dec. 18, 1980 to Jan. 14, 1981
101,853.12
Jan. 20 to Feb. 12, 1981 95,000.00
Feb. 16 to Feb. 19, 1981 115,000.00

P731,853.12
Thereafter, no further payment was made by
appellant contending that under the provisions of
paragraph 1(b) of the contract, the payment
schedule should be adjusted. The said provisions
states as follows:
Par. 1, sub-par. (b)
Should the FIRST PARTY (plaintiff
Investco) obtain titles to the properties
above-described after July 22, 1977,
the due dates of the downpayment
and the subsequent payments on the
balance shall be adjusted accordingly.'
Admittedly, the subject titles were obtained during
the period of March 21, to March 28, 1979, or after
July 22, 1977 (Exhs. D to 1 and Exhs. 2 to 10). Thus,
implementing par. 1(b) of the Contract, the due dates
of payments should have been adjusted as follows:
Due Dates
Per Contract Installment Adjusted
Schedule A Number Due Dates
Downpayment

July 22, 1977 March 28, 1979

October 22, 1977 June 08, 1979
January 22, 1978 September 28, 1979
Balance
July 22, 1978 No. 1 March 08, 1980
January 22, 1979 No. 2 September 28, 1980
July 22, 1979 No. 3 March 28, 1981
January 22, 1981 No. 4 September 28, 1981
July 22, 1980 No. 5 March 28, 1982
January 22, 1981 No. 6 September 28, 1982
July 22, 1981 No. 7 March 28, 1983
January 22, 1982 No. 8 September 28, 1983
July 22, 1982 No. 9 March 28, 1984
January 22, 1983 No. 10 September 28, 1984
In view of the adjustment of due dates in accordance
with par. 1(b) of the Contract payments made should
correspond to the adjusted dates. Thus, the payment
on the 4th installment which is supposed to have
been made on January 22, 1980, should
be credited on September 28, 1981, and the next
payment on the 5th installment which should have
been made on July 22, 1981 under the contract
would have to be credited on March 28, 1981, the
adjusted due date. 7
It is but proper, therefore, to indeed declare 28 March 1982 to be
the due date for the payment of the 5th installment. The total
amount of P731,853.12, representing payments for the 5th
installment made by petitioner, should rightly be credited on 28
March 1982, the adjusted due date. Since no payment appears to
have been made after 1981, petitioner should thereby be likewise
held in default in the payment of the 6th to the 10th installments.
Under the terms of the contract, hereinbefore recited, petitioner's
default has effectively activated the acceleration clause of the
contract, and we see no error on the part of the appellate court in
ordering petitioner to pay the entire unpaid balance of
P4,800,282.91 with interest thereon at the rate of 1% per month to
be computed from 22 March 1982.
WHEREFORE, except on the award of attorney's fees which is
hereby DELETED, the decision of the Court of Appeals is AFFIRMED.
No costs.
SO ORDERED.
Bidin, Romero and Melo, JJ., concur.
Feliciano, J. concurs in the result.
G.R. No. L-41862 February 7, 1992

B. R. SEBASTIAN ENTERPRISES, INC., petitioner,

vs.
HON. COURT OF APPEALS, EULOGIO B. REYES, NICANOR G.
SALAYSAY, in his capacity as Provincial Sheriff of Rizal, and
ANTONIO MARINAS, in his capacity as Deputy
Sheriff, respondents.
Benito P. Fabie for petitioner.
Ildefonso de Guzman-Mendiola for private respondents.
DAVIDE, JR., J.:
This is a petition for prohibition and mandamus, with prayer for
preliminary injunction, to review the Resolution dated 10 November
1975 of respondent Court of Appeals in C.A.-G.R. No. 53546-R
denying petitioner's motion to reinstate its appeal, earlier
dismissed for failure to file the Appellant's Brief.
The material operative facts of this case, as gathered from the
pleadings of the parties, are not disputed.
Eulogio B. Reyes, now deceased, filed an action for damages with
the then Court of First Instance (now RegionalTrial Court) of Rizal,
Pasay City Branch, against the Director of Public Works, the
Republic of the Philippines and petitioner herein, B. R. Sebastian
Enterprises, Inc. The case was docketed as Civil Case No. 757-R. 1
On 7 May 1973, the trial court rendered a decision finding
petitioner liable for damages but absolving the otherdefendants. 2
Petitioner, thru its counsel, the law firm of Baizas, Alberto and
Associates, timely appealed the adverse decision to the respondent
Court of Appeals, which docketed the case as C.A.-G.R. No. 53546R. 3
During the pendency of the appeal, the plaintiff-appellee therein,
Eulogio B. Reyes, died. Upon prior leave of the respondent Court,
he was substituted by his heirs Enrique N. Reyes, Felicisima R.
Natividad, Donna Marie N. Reyes and Renne Marie N. Ryes who
are now the private respondents in this present petition.
On 19 February 1974, petitioner, thru its then counsel of record,
received notice to file Appellant's Brief within 45 days from receipt
thereof. It had, therefore, until 5 April 1974 within which to comply.
Counsel for petitioner failed to file the Brief; thus, on 9 July 1974,
respondent Court issued a Resolution requiring said counsel to
show cause why the appeal should not be dismissed for failure to
file the Appellant's Brief within the reglementary period. 4 A copy of
this Resolution was received by counsel for petitioner on 17 July
1974. 5

As the latter failed to comply with the above Resolution, respondent

Court, on 9 September 1974, issued another Resolution this time
dismissing petitioner's appeal:
It appearing that counsel for defendant-appellant
failed to show cause why the appeal should not be
dismissed (for failure to file the appellant's brief
within the reglementary period which expired on
April 5, 1974) within the period of 10 days fixed in
the resolution of July 9, 1974, copy of which was
received by said counsel on July 17, 1974; . . . 6
On 28 September 1974, petitioner, this time thru the BAIZAS
LAW OFFICE, filed a motion for reconsideration 7 of the resolution
dismissing its appeal alleging that as a result of the death of Atty.
Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO &
ASSOCIATES, the affairs of the said firm are still being settled
between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby
Alberto, the latter having established her own law office;
furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this
case in the trial court and who is believed to have also attended to
the preparation of the Appellant's Brief but failed to submit it
through oversight and inadvertence, had also left the firm.
In its Resolution of 9 October 1974, respondent Court denied the
motion for reconsideration, stating that:
Upon consideration of the motion of counsel for
defendant-appellant, praying, on the grounds therein
stated, that the resolution of September 9, 1974,
dismissing the appeal, be set aside, and that
appellant be granted a reasonable period of time
within which to file its brief: considering that six (6)
months had elapsed since the expiration of the
original period and more than two and one-half (2-)
months since counsel received copy of the resolution
requiring him to show cause why the appeal should
not be dismissed for failure to file brief; Motion
Denied. 8
No action having been taken by petitioner from the above
Resolution within the period to file a petition for review, the same
became final and executory, and the records of the case were
remanded to the court of origin for execution.
The trial court issued a writ of execution on 21 October
1975. 9 Pursuant thereto, respondent Provincial Sheriff andDeputy
Sheriff attached petitioner's Hough Pay Loader with Hercules Diesel
Engine and issued on 5 November 1975 a Notice of Sheriff's Sale,
scheduling for Friday, 14 November 1975 at 10:00 o'clock in the
morning, the auction sale thereof. 10

On 6 November 1975, petitioner filed with respondent Court a

Motion to Reinstate Appeal with Prayer for Issuance of a Writ of
Preliminary Injunction 11 dated 5 November 1975, and containing
the following allegations:
1. That late as it may be, this Honorable Court has
the inherent power to modify and set aside its
processes, in the interest of justice, especially so in
this case when the case was dismissed on account of
the untimely death of Atty. Crispin D. Baizas, counsel
of BRSEI (B.R. SebastianEnterprises, Inc.).
2. That to dismiss the case for failure to file the
appellant's brief owing to the untimely death of the
late Atty. Crispin D. Baizas would be tantamount to
denying BRSEI its (sic) day in court, and is, therefore,
a clear and unmistakable denial of due process on
the part of BRSEI.
3. That to reinstate BRSEI's appeal would not impair
the rights of the parties, since all that BRSEI is asking
for, is a day in court to be heard on appeal in order to
have the unfair, unjust and unlawful decision, set
aside and reversed.
The respondent Court denied the said motion in its Resolution of 10
November 1975: 12
. . . it appearing that appellant was represented by
the law firm of Baizas, Alberto & Associates, and
while Atty. Baizas died on January 16, 1974, his law
firm was not dissolved since it received the notice to
file brief on February 19, 1974, and the copy of the
Resolution of July 9, 1974, requiring appellant to
show cause why the appeal should not be dismissed
was received by the law firm on July 17, 1974 and no
cause was shown; . . .
Hence, on 13 November 1975, petitioner filed the original
petition 13 in this case against the Court of Appeals, Eulogio B.
Reyes, Nicanor G. Salaysay, as Provincial Sheriff of Rizal, and
Antonio Marinas, as Deputy Sheriff. The petition likewise prayed for
the issuance of a Temporary Restraining Order.
In the Resolution of 13 November 1975, this Court required
respondents to comment on the petition within ten (10) days from
receipt thereof, and issued a Temporary Restraining Order. 14
On 12 January 1976, respondents filed a Partial Comment on the
Petition with a Motion to Suspend the Proceedings 15 on the ground
that respondent Eulogio B. Reyes is already dead and his lawful
heirs had already been ordered substituted for him during the
pendency of the appeal before the respondent Court of Appeals.

In the Resolution of 21 January 1976, this Court ordered petitioner

to amend its petition within then (10) days from receipt of notice,
and suspended the filing of respondents' Comment until after the
amendment is presented and admitted. 16
In compliance therewith, petitioner filed on 9 February 1976 a
Motion for Leave to Admit Amended Petition to which it attached
the said Amended Petition. 17 The amendment consists in the
substitution of Eulogio B. Reyes with his heirs.
This Court admitted the Amended Petition 18 and required the
respondents to file their Comment within ten (10) days from notice
thereof, which they complied with on 5 April 1976. 19 Petitioner filed
its Reply to the Comment on 29 April 1976.20
In the Resolution of 12 May 1976, this Court denied the petition for
lack of merit: 21
L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of
Appeals, et. al.). Considering the allegations,
issues and arguments adduced in the amended
petition for review on certiorari of the decision of the
Court of Appeals, respondents' comment thereon, as
well as petitioner's reply to said comment, the Court
Resolved to DENY the petition for lack of merit.
However, on 31 May 1976, petitioner filed a motion for its
reconsideration 22 claiming that since it was deprived of the right to
appeal without fault on its part, the petition should be given due
course.
Respondents submitted on 22 July 1976 their Comment 23 to said
Motion for Reconsideration.
On 10 September 1976, this Court resolved to reconsider 24 its
Resolution of 12 May 1976 and required both parties to submit
simultaneously their respective Memoranda within thirty (30) days
from notice thereof.
Petitioner submitted its Memorandum on 5 November 1976 25 while
respondents submitted theirs on 22 November 1976. 26 On 29
November 1976, this Court deemed the present case submitted for
decision. 27
The sole issue to be addressed is whether or not the respondent
Court of Appeals gravely abused its discretion in denying
petitioner's motion to reinstate its appeal, previously dismissed for
failure to file the Appellant's Brief.
Petitioner, in its Memorandum, extensively expounds on
respondent Court's authority to reinstate dismissed appeals and
cites as basis thereof the decision of this Court in Heirs of Clemente
Celestino vs. Court of Appeals, et al., 28 Indeed, in said case, this
Court affirmed the resolution of the Court of Appeals reinstating
an appeal after being dismissed for failure by the appellants therein

to file their brief, and after entry of judgment and remand of the
records to the lower court and cancelled the entry of judgment,
requiring the lower court to return the records to the Court of
Appeals and admit appellant's brief. Said case, however, had a
peculiar or singular factual situation" which prompted the Court of
Appeals to grant the relief and which this Court found sufficient to
justify such action. As this Court, through Associate Justice Ramon
Aquino, said:
We are of the opinion that under the peculiar or
singular factual situation in this case and to forestall
a miscarriage of justice the resolution of the Court of
Appeals reinstating the appeal should be upheld.
That Court dismissed the appeal of the Pagtakhans in
the mistaken belief that they had abandoned it
because they allegedly failed to give to their counsel
the money needed for paying the cost of printing
their brief.
But presumably the Appellate Court realized later
that fraud might have been practised on appellants
Pagtakhans since their oppositions were not included
in the record on appeal. In (sic) sensed that there
was some irregularity in the actuations of
their lawyer and that Court (sic) itself had been
misled into dismissing the appeal.
Counsel for the Pagtakhans could have furnished
them with copies of his motions for extension of time
to file brief so that they would have known that the
Court of Appeals had been apprised of their alleged
failure to defray the cost of printing their brief and
they could have articulated their reaction directly to
the Court. Counsel could have moved in the
Appellate Court that he be allowed to withdraw from
the case or that the Pagtakhans be required to
manifest whether they were still desirous of
prosecuting their appeal or wanted a mimeographed
brief to be filed for them (See People vs. Cawili, L30543, August 31, 1970, 34 SCRA 728). Since
counsel did none of those things, his representation
that the appellants had evinced lack of interest in
pursuing their appeal is difficult to believe.
If the appellate court has not yet lost its jurisdiction,
it may exercise its discretion in reinstating an appeal,
having in mind the circumstances obtaining in each
case and the demands of substantial justice (Alquiza
vs. Alquiza, L-23342, February 10, 1968, 22 SCRA

494, 66 O.G. 276; C. Vda. de Ordoveza vs.

Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108
Phil. 6).
But even if it has already lost jurisdiction over the
appeal by reason of the remand of the record to the
lower court, it, nevertheless, has the inherent right to
recall the remittitur or the remand of the record to
the lower court if it had rendered a decision or issued
a resolution which was induced by fraud practised
upon it. Such a right is not affected by the statutory
provision that after the record has been remanded,
the appellate court has no further jurisdiction over
the appeal (5 Am Jur. 2nd 433 citingLovett vs. State,
29 Fla. 384, 11 So. 176; 84 ALR 595; State vs.
Ramirez, 34 Idaho 623, 203 Pac. 279).
In the instant case, no fraud is involved; what obtain is simple
negligence on the part of petitioner's counsel, which is neither
excusable nor unavoidable. Petitioner thus failed to demonstrate
sufficient cause to warrant a favorable action on its plea.
As held in Chavez, et al. vs. Ganzon, et al., 29 and reiterated
in Negros Stevedoring Co., Inc. vs. Court of Appeals, 30We said:
Granting that the power or discretion to reinstate an
appeal that had been dismissed is included in or
implied from the power or discretion to dismiss an
appeal, still such power or discretion must be
exercised upon a showing of good and sufficient
cause, in like manner as the power or discretion
vested in the appellate court to allow extensions of
time for the filing of briefs. There must be such a
showing which would call for, prompt and justify its
exercise (sic). Otherwise, it cannot and must not be
upheld.
To justify its failure to file the Appellant's Brief, petitioner relies
mainly on the death of Atty. Crispin Baizas and the supposed
confusion it brought to the firm of BAIZAS, ALBERTO & ASSOCIATES.
It says: 31
Petitioner, thru its president Bernardo R. Sebastian,
engaged the services of Atty. Crispin D. Baizas to
handle its defense in Civil Case No. 757-R; however,
it appears that Atty. Baizas entered petitioner's case
as a case to be handled by his law firm operating
under the name and style "Crispin D. Baizas &
Associates." Hence, the Answer to the complaint,
Answer to Cross-Claim, and Answer to Fourth-party
Complaint filed for petitioner in said case, evince that

the law firm "Crispin D. Baizas & Associates"

represents petitioner in the action.
After rendition of the assailed Decision of the trial
court, petitioner's counsel appears to have changed
its firm name to "Baizas, Alberto & Associates." The
appeal was thus pursued for petitioner by the law
firm "Baizas, Alberto & Associates."
On January 16, 1974, Atty. Crispin D. Baizas died as a
result of a brief heart attack. In consequence (sic) of
his death, the law firm "Baizas, Alberto & Associates"
was in a terribly confused state of affairs. In effect,
said law firm was dissolved. Atty. Ruby Alberto
formed her own law office and other associates left
the dissolved law firms (sic) joining other offices or
putting up their own. Atty. Jose Baizas, son of
deceased Crispin D. Baizas, took over the
management of why may have been left of his
father's office, it appearing that some, if not many,
cases of the defunct office were taken over by the
associates who left the firm upon its dissolution.
But, none of the former partners and
associates/assistants of the dissolved law firm filed
the required appellant's brief for herein petitioner in
its appealed case before the respondent Court of
Appeals. No notice was served upon petitioner by
any of the surviving associates of the defunct law
firm that its appellant's brief was due for filing or that
the law office had been dissolved and that the law
office had been dissolved and that none of the
lawyers herein formerly connected desired to handle
the appealed case of petitioner. . . .
The circumstances that the law firm "Baizas, Alberto
& Associates" was dissolved and that none of the
associates took over petitioner's case, and no notice
of such state of affairs was given to petitioner who
could have engaged the services of another lawyer
to prosecute its appeal before respondent Court,
constitutes (sic) an UNAVOIDABLE CASUALTY that
entitles petitioner to the relief prayed for. On the
other hand, the non-dissolution of said law firm
"Baizas, Alberto & Associates" will not defeat
petitioner's claim for relief since, in such event, the
said firm had ABANDONED petitioner's cause, which
act constitutes fraud and/or reckless inattention the
result of which is deprivation of petitioner's day in

court. In the abovementioned Yuseco case, this

Honorable Court had emphatically and forcefully
declared that it will always be disposed to grant relief
to parties aggrieved by perfidy, fraud, reckless
inattention and downright incompetence of lawyers,
which has the consequence of depriving their day
(sic) in court.
We find no merit in petitioner's contentions. Petitioner's counsel
was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not
merely Atty. Crispin Baizas. Hence, the death of the latter did not
extinguish the lawyer-client relationship between said firm and
petitioner.
In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal filed by
the law firm of BAIZAS, ALBERTO & ASSOCIATES on behalf of
respondent therein was dismissed for failure to comply with the
requisites enumerated in the Rules of Court; the excuse presented
by said counsel was also the death of Atty. Crispin Baizas. This
Court held therein that:
The death of Attorney Baizas was not a valid excuse
on the part of his associates for not attending to
Alvendia's appeal, supposing arguendo that his office
was solely entrusted with the task of representing
Alvendia in the Court of Appeals. Attorney Espiritu
(not Attorney Baizas) was the one actually
collaborating with Viola in handling Alvendia's case.
He did not file a formal appearance in the Court of
Appeals.
Undoubtedly, there was inexcusable negligence on the part of
petitioner's counsel in failing to file the Appellant's Brief. As
revealed by the records, petitioner's counsel, the BAIZAS ALBERTO
& ASSOCIATES law firm, received the notice to file Brief on 19
February 1974. It failed to do so within the 45 days granted to it.
Said law firm also received a copy of the respondent Court's
Resolution of 9 July 1974 requiring it to show cause why the appeal
should not be dismissed for failure to file the Brief within the
reglementary period. Petitioner chose not to comply with it, thus
compelling the respondent Court to issue on 9 September 1974 a
Resolution dismissing the appeal, a copy of which the former also
received. Then, on 28 September 1974, the BAIZAS LAW OFFICE
moved for reconsideration of the said Resolution which respondent
Court denied in its Resolution of 9 October 1974. Nothing more was
heard from petitioner until after a year when, on 6 November 1975,
it filed the instant petition in reaction to the issuance of a writ of
execution by the trial court following receipt of the records for the
respondent Court.

The "confusion" in the office of the law firm following the death of
Atty. Crispin Baizas is not a valid justification for its failure to file the
Brief. With Baizas' death, the responsibility of Atty. Alberto and
his Associates to the petitioner as counsel remained until
withdrawal by the former of their appearance in the manner
provided by the Rules of Court. This is so because it was the law
firm which handled the case for petitioner before both the trial and
appellate courts. That Atty. Espiritu, an associate who was
designated to handle the case, later left the office after the death
of Atty. Baizas is of no moment since others in the firm could have
replaced him.. Upon receipt of the notice to file Brief, the law firm
should have re-assigned the case to another associate or, it could
have withdrawn as counsel in the manner provided by the Rules of
Court so that the petitioner could contract the services of a new
lawyer.
In the Negros Stevedoring case, supra., this Court held:
The negligence committed in the case at bar cannot
be considered excusable, nor (sic) is it unavoidable.
Time and again the Court has admonished law firms
to adopt a system of distributing pleadings and
notices, whereby lawyers working therein receive
promptly notices and pleadings intended for them, so
that they will always be informed of the status of
their cases. Their Court has also often repeated that
the negligence of clerks which adversely affect the
cases handled by lawyers, is binding upon the latter.
Compounding such negligence is the failure of the BAIZAS LAW
OFFICE, which filed on 28 September 1974 the motion for
reconsider the Resolution of 9 September 1974, to take any further
appropriate action after the respondent Court denied said motion
on 9 October 1974. The appearance of said counsel is presumed to
be duly authorized by petitioner. The latter has neither assailed nor
questioned such appearance.
The rule is settled that negligence of counsel binds the client. 33
Moreover, petitioner itself was guilty of negligence when it failed to
make inquiries from counsel regarding its case. As pointed out by
respondents, the president of petitioner corporation claims to be
the intimate friend of Atty. Crispin Baizas; hence, the death of the
latter must have been known to the former. 34 This fact should have
made petitioner more vigilant with respect to the case at bar.
Petitioner failed to act with prudence and diligence, thus, its plea
that they were not accorded the right to procedural due process
cannot elicit either approval or sympathy. 35
Based on the foregoing, it is clear that there was failure to show a
good and sufficient cause which would justify the reinstatement of

petitioner's appeal. Respondent Court of Appeals did not them

commit any grave abuse of discretion when it denied petitioner's
motion to reinstate its appeal.
WHEREFORE, the Petition is hereby DISMISSED and the temporary
restraining order issued in this case is lifted.
Costs against petitioner.
IT SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.
SECOND DIVISION
[A.C. No. 3773. September 24, 1997]
ANGELITA
C.
ORCINO, complainant, vs.
ATTY.
JOSUE
GASPAR, respondent.
RESOLUTION
PUNO, J.:
On June 14, 1992, complainant Angelita C. Orcino filed with
this Court a letter-complaint dated December 10, 1991 against
respondent Atty. Josue Gaspar, her former counsel. Complainant
prayed that this Court impose disciplinary sanctions on respondent
for abandoning his duties and for failing to return the legal fees she
fully paid for his services.
The complaint arose from the following facts: Complainant
engaged the services of respondent to prosecute a criminal case
she intended to file against several suspects in the slaying of her
husband. In consideration thereof, complainant bound herself to
pay respondent legal fees of P20,000.00 -- P10,000.00 to be paid
upon signing of the contract and the balance to be paid on or
before the conclusion of the case. Complainant was also to
pay P500.00 per appearance of respondent before the court
and fiscal. This agreement was embodied in a contract executed
on February 22, 1991.[1]
In accordance with the contract, complainant paid respondent
the sum of P5,000.00 on February 25, 1991,[2] another P5,000.00 on
March 31, 1991,[3] and P10,000.00 on May 21, 1991,[4] for a total
of P20,000.00.
Forthwith, respondent entered into his duties. He interviewed
witnesses and gathered evidence to build a case against the
suspects. He drew up the necessary sworn statements and
dutifully attended the preliminary investigation. The case was
thereafter filed with the Regional Trial Court, Branch 37, Baloc, Sto.
Domingo, Nueva Ecija.[5]
As private prosecutor, respondent religiously attended
the bail hearings for the accused although these hearings were
postponed on motion of the accused's counsel. Respondent
however failed to attend the hearing scheduled in August 1991. It

was at this hearing that the court, over complainant's objections,

granted bail to all the accused. After the hearing, complainant
immediately went to respondent's residence and confronted him
with his absence.[6] Respondent explained that he did not receive
formal notice of the hearing.[7] Complainant became belligerent and
started accusing him of jeopardizing the case by his
absence. Respondent said that her suspicions were based on
rumors and intrigues fed to her by her relatives. [8] Complainant,
however, continued accusing him belligerently. She asked for the
records of the case saying that she could refer them to
another lawyer. Stung by her words, respondent gave her the
records.[9]
Complainant never returned the records nor did she see
respondent. On September 18, 1991, respondent filed before the
trial court a "Motion to Withdraw asCounsel."[10] The motion did not
bear the consent of complainant.
On
October
23,
1991,
the
court
issued
an
order directing respondent to secure complainant's consent to the
motion "and his appearance as private prosecutor shall continue
until he has secured this consent."[11]
Complainant refused to sign her conformity to respondent's
withdrawal.[12] Meanwhile, the hearings in the criminal case
continued. Respondent did not appear at the hearings nor did he
contact complainant. Complainant was thus compelled to engage
the services of another lawyer. Hence, the letter-complaint.
We referred the letter-complaint to the Integrated Bar of the
Philippines, Commission on Bar Discipline, for investigation, report
and recommendation.
The rule in this jurisdiction is that a client has the absolute
right to terminate the attorney-client relation at any time with or
without cause.[13] The right of an attorney to withdraw or terminate
the relation other than for sufficient cause is, however,
considerably restricted.[14] Among the fundamental rules of ethics is
the principle that an attorney who undertakes to conduct an action
impliedly stipulates to carry it to its conclusion. [15] He is not at
liberty to abandon it without reasonable cause. [16] A lawyer's right
to withdraw from a case before its final adjudication arises only
from the client's written consent or from a good cause.[17]
Section 26 of Rule 138 of the Revised Rules of Court provides:
"Sec. 26. Change of attorneys -- An attorney may retire at
any time from any action or special proceeding, by the
written consent of his client filed in court. He may also
retire at any time from an action or special proceeding,
without the consent of his client, should the court, on
notice to the client and attorney, and on hearing,
determine that he ought to be allowed to retire. In case of

substitution, the name of the attorney newly employed

shall be entered on the docket of the court in place of
the former one, and written notice of the change shall be
given to the adverse party.
x
x
x."
A lawyer may retire at any time from any action or special
proceeding with the written consent of his client filed in court and
copy thereof served upon the adverse party. Should the client
refuse to give his consent, the lawyer must file an application with
the court. The court, on notice to the client and adverse party,
shall determine whether he ought to be allowed to retire. The
application for withdrawal must be based on a good cause.[18]
In the instant case, complainant did not give her written
consent to respondent's withdrawal. The court thus ordered
respondent to secure this consent. Respondent allegedly informed
the court that complainant had become hostile and refused to sign
his motion.[19] He, however, did not file an application with the court
for it to determine whether he should be allowed to withdraw.
Granting that respondent's motion without complainant's
consent was an application for withdrawal with the court, we find
that this reason is insufficient to justify his withdrawal from the
case. Respondent's withdrawal was made on the ground that
"there no longer exist[ed] the xxx confidence" between them and
that there had been "serious diffferences between them relating to
the manner of private prosecution."[20]
Rule 22.01 of Canon 22 of the Code of Professional
Responsibility provides:
"CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01-- A lawyer may withdraw his services in any of the
following cases:
a) When the client pursues an illegal or immoral course of conduct
in connection with the matter he is handling;
b) When the client insists that the lawyer pursue conduct violative
of these canons and rules;
c) When his inability to work with co-counsel will not promote the
best interest of the client;
d) When the mental or physical condition of the lawyer renders it
difficult for him to carry out the employment effectively;
e) When the client deliberately fails to pay the fees for the services
or fails to comply with the retainer agreement;
f) When the lawyer is elected or appointed to public office; and
g) Other similar cases."
A lawyer may withdraw his services from his client only in the
following instances: (a) when a client insists upon an unjust or

immoral conduct of his case; (b) when the client insists that the
lawyer pursue conduct violative of the Code of Professional
Responsibility; (c) when the client has two or more retained lawyers
and the lawyers could not get along to the detriment of the case;
(d) when the mental or physical condition of the lawyer makes him
incapable of handling the case effectively; (e) when the client
deliberately fails to pay the attorney's fees agreed upon; (f) when
the lawyer is elected or appointed to public office; (g) other similar
cases.
The instant case does not fall under any of the grounds
mentioned. Neither can this be considered analogous to the
grounds enumerated. As found by the Commission on Bar
Discipline, this case arose from a simple misunderstanding between
complainant and respondent. Complainant was upset by
respondent's absence at the hearing where bail was granted to the
suspected killers of her husband. She vehemently opposed the
grant of bail. It was thus a spontaneous and natural reaction for
her to confront respondent with his absence. Her belligerence
arose from her overzealousness, nothing more. Complainant's
words and actions may have hurt respondent's feelings considering
the work he had put into the case. But her words were uttered in a
burst of passion. And even at that moment, complainant did not
expressly terminate respondent's services. She made this clear
when she refused to sign his "Motion to Withdraw as Counsel."
Assuming, nevertheless, that respondent was justified in
terminating his services, he, however, cannot just do so and leave
complainant in the cold unprotected. The lawyer has no right to
presume that his petition for withdrawal will be granted by the
court.[21] Until his withdrawal shall have been approved, the lawyer
remains counsel of record who is expected by his client as well as
by the court to do what the interests of his client require. [22] He
must still appear on the date of hearing [23] for the attorney-client
relation does not terminate formally until there is a withdrawal of
record.[24]
Respondent expressly bound himself under the contract to
bring the criminal case to its termination. He was in fact paid in full
for his services. Respondent failed to comply with his undertaking,
hence, it is but fair that he return to complainant half of the amount
paid him. The peculiar circumstances of the case have rendered it
impossible for respondent and complainant to continue their
relation under the contract.
IN VIEW WHEREOF, respondent is admonished to exercise
more prudence and judiciousness in dealing with his clients. He is
also ordered to return to complainant within fifteen (15) days from
notice the amount of ten thousand pesos (P10,000.00) representing
a portion of his legal fees received from the latter with a warning

that failure on his part to do so will result in the imposition of stiffer

disciplinary action.
SO ORDERED.
Regalado, (Chairman) and Torres, Jr., JJ., concur.
Mendoza, J., on official leave.