J.A.B. Bulao & Associates

CASE 2016-0074: SPOUSES EMILIO AND ALICIA JACINTO,  V. ATTY. EMELIE P. BANGOT, JR., (A.C. NO. 8494, 05 OCTOBER 2016 , BERSAMIN, J.)

DISPOSITIVE:

“WHEREFORE, this Court FINDS and HOLDS respondent ATTY. EMELIE P. BAN GOT, JR. guilty of violation of the Lawyer’s Oath and of the Code of Professional Responsibility; SUSPENDS him from the practice of law for five ( 5) years effective upon notice of this decision, with warning that sterner sanctions will be meted on him for a similar offense; and DECLARES that he is not entitled to recover any attorney’s fees from the complainants.

Let copies of this decision be furnished to the Office of the Bar Confidant; the Integrated Bar of the Philippines; and to the Office of the Court Administrator.

The Office of the Court Administrator shall disseminate this decision to all courts of the Philippines.

 SO ORDERED”

SUBJECTS/DOCTRINES/DIGEST:

“Although the complainants appeared to have initially bound themselves to give a part of their land as the respondent’s professional fees, they did so apparently because he had misrepresented to them the gravity and extent of their legal matter. His misrepresentation was undeniably calculated to make them part with their valuable asset in lieu of cash. He did not thereafter render any worthy professional legal service in their favor. Verily, as the cliche goes, they did not get their money’s worth from him. Even if this charge was his first infraction, the grossness of his violations of the Lawyer’s Oath and the various relevant canons of the Code of Professional Responsibility quoted earlier absolutely warranted his suspension from the practice of law for five years effective upon his receipt of this decision, with warning of sterner sanctions should he hereafter commit a similar offense. This duration of suspension was the penalty we prescribed in the recent case of Mercullo v. Ramon24 where the respondent lawyer had deceived the complainants into parting with the substantial sum of P350,000.00 as her attorney’s fees but did not subsequently perform her professional undertaking.

In addition, the respondent should not be entitled to receive any attorney’s fees in view of the worthlessness of the professional services he supposedly rendered. There is no question, as ruled in Sanchez v. Aguilos,25 that every attorney is entitled to have and receive a just and reasonable compensation for services performed at the special instance and request of his client; and that for as long as the attorney is in good faith and honestly trying to represent and serve the interests of the client, he should have a reasonable compensation for such services. Yet, equally without question is that the attorney should not accept the engagement that is way above his ability and competence to handle, for there will then be no basis for him to accept any amount as attorney’s fees; or that he should at least begin to perform the contemplated task undertaken for the client to entitle him to be compensated on the basis of quantum meruit.26””

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CASE 2016-0072: H. SOHRIA PASAGI DIAMBRANG V. COMMISSION ON ELECTIONS AND H. HAMIM SARIP PATAD (G.R. 201809, 11 OCTOBER 2016 , CARPIO, ACTING C.J) (BRIEF TITLE: DIAMBRANG VS COMELEC ET AL)

DISPOSITIVE:

“WHEREFORE, we DISMISS the petition for being moot and academic.

 SO ORDERED”

SUBJECTS/DOCTRINES/DIGEST:

“Clearly, the prevailing ruling is that if the certificate of candidacy is void ab initio, the candidate is not considered a candidate from the very beginning even if his certificate of candidacy was cancelled after the elections.

Patad’s disqualification arose from his being a fugitive from justice. It does not matter that the disqualification case against him was finally decided by the COMELEC En Banc only on 14 November 2011. Patad’s certificate of candidacy was void ab initio. As such, Diambrang, being the first-placer among the qualified candidates, should have been proclaimed as the dulyelected Punong Barangay of Barangay Kaludan, Nunungan, Lanao del Norte. However, due to supervening events as we previously discussed, Diambrang can no longer hold office.”

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CASE 2016-0071: J.O.S. MANAGING BUILDERS VS UNITED OVERSEAS BANK PHILIPPINES (FORMERLY KNOWN AS WESTMONT BANK), EMMANUEL T. MANGOSING AND DAVID GOH CHAI ENG, (G.R. NO. 219815, 14 SEPT 2016, JARDELEZA, J.) (SUBJECT/S:: 3-DAY NOTICE RULE; FILING MOTION TO DISMISS AFTER FILING ANSWER; INDIRECT CONTEMPT) (BRIEF TITLE: J.O.S. MANAGING BUILDERS VS. UNITED OVERSEAS BANK ET AL)

 DISPOSITIVE:

“WHEREFORE, the petition is PARTIALLY GRANTED. The October 7, 2014 and July 20, 2015 Orders of the Regional Trial Court of Quezon City, Branch 87 in Civil Case No. Q-11-69413 are hereby REVERSED. The case is REMANDED to the court a quo for continuance of the trial of the case.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

RTC DISMISSED THE CONTEMPT CHARGE FOR BEEING MOOT. IT ALSO GRANTS RESPONDENTS’ MOTION TO EXPUNGE PETITIONER’S MR FOR BEING VIOLATIVE OF THE THREE DAY NOTICE RULE. PETITIONER THEN FILED PETITION DIRECTLY TO SC (NOT PASSING CA) RAISING QUESTIONS OF LAW. DID PETITIONER VIOLATE THE RULE ON HIERARCHY OF COURTS?

NO.

THE RULES PROVIDES THAT IN ALL CASES WHERE ONLY QUESTIONS OF LAW ARE RAISED OR INVOLVED, THE APPEAL SHALL BE BEFORE SC.

 HEARING WAS SET FOR NOV 7. RESPONDENTS ONLY RECEIVED NOTICE FROM PETITIONER ON NOV 6. RTC EXPUNGED PETITIONER’S MR BECAUSE IT VIOLATED THE 3 DAY RULE ON MOTIONS. WAS RTC CORRECT?

NO.

THE THREE-DAY NOTICE REQUIREMENT IS NOT A HARD-AND-FAST RULE. A LIBERAL CONSTRUCTION OF THE PROCEDURAL RULES IS PROPER WHERE THE LAPSE IN THE LITERAL OBSERVANCE OF A RULE OF PROCEDURE HAS NOT PREJUDICED THE ADVERSE PARTY AND HAS NOT DEPRIVED THE COURT OF ITS AUTHORITY.

WHAT IS THE BASIS OF THE THREE DAY NOTICE RULE?

SECTION 4, RULE 15 OF THE RULES, PROVIDES THAT:

SEC. 4. HEARING OF MOTION. -EXCEPT FOR MOTIONS WHICH THE COURT MAY ACT UPON WITHOUT PREJUDICING THE RIGHTS OF THE ADVERSE PARTY, EVERY WRITTEN MOTION SHALL BE SET FOR HEARING BY THE APPLICANT.

EVERY WRITTEN MOTION REQUIRED TO BE HEARD AND THE NOTICE OF THE HEARING THEREOF SHALL BE SERVED IN SUCH A MANNER AS TO ENSURE ITS RECEIPT BY THE OTHER PARTY AT LEAST THREE (3) DAYS BEFORE THE DATE OF HEARING, UNLESS THE COURT FOR GOOD CAUSE SETS THE HEARING ON SHORTER NOTICE.

WHAT IS THE NATURE OF THIS RULE??

IT IS MANDATORY.

IT IS AN INTEGRAL COMPONENT OF PROCEDURAL DUE PROCESS.

WHAT IS THE PURPOSE OF THE RULE?

TO AVOID SURPRISES UPON RESPONDENT  AND TO GRANT IT SUFFICIENT TIME TO STUDY THE MOTION AND TO ENABLE IT TO MEET THE ARGUMENTS INTERPOSED.

WHAT IS THE TEST OF THE OBSERVANCE OF THE 3 DAY NOTICE RULE?

THE TEST IS THE PRESENCE OF OPPORTUNITY TO BE HEARD, AS WELL AS TO HAVE TIME TO STUDY THE MOTION AND MEANINGFULLY OPPOSE OR CONTROVERT THE GROUNDS UPON WHICH IT IS BASED.35

THUS WHEN RESPONDENT FILED OPPOSITION AND RAISED ARGUMENTS AGAINST THE CONTENTS OF THE MOTION HE WAS AFFORDED OPPORTUNITY TO PRESENT HIS SIDE.

WHEN THE ADVERSE PARTY HAD BEEN AFFORDED SUCH OPPORTUNITY, AND HAS BEEN INDEED HEARD THROUGH THE PLEADINGS FILED IN OPPOSITION TO THE MOTION, THE PURPOSE BEHIND THE THREE-DAY NOTICE REQUIREMENT IS DEEMED REALIZED.

IN SUCH CASE, THE REQUIREMENTS OF PROCEDURAL DUE PROCESS ARE SUBSTANTIALLY COMPLIED WITH.

AFTER RESPONDENT  FILED ANSWER TO THE CONTEMPT CHARGE, THEY FILED MOTION TO DISMISS ON THE GROUND THAT THE CA IN THE FORECLOSURE ANNULMENT CASE REVERSED THE RTC DECISION AND THEREFORE THERE IS NO MORE BASIS FOR THE CONTEMPT CASE. PETITIONER SAID RESPONDENT’S ACTION WAS IMPROPER BECAUSE THE RULES PROVIDE THAT MOTION TO DISMISS MUST BE FILED ONLY BEFORE AN ANSWER IS FILED. IS PETITIONER CORRECT?

 NO.

IN OBANDO V. FIGUERAS,41 WE HELD THAT THE PERIOD TO FILE A MOTION TO DISMISS DEPENDS UPON THE CIRCUMSTANCES OF THE CASE.

EVEN AFTER AN ANSWER HAS BEEN FILED, THE COURT HAS ALLOWED A DEFENDANT TO FILE A MOTION TO DISMISS ON THE FOLLOWING GROUNDS: (1) LACK OF JURISDICTION, (2) LITIS PENDENTIA, (3) LACK OF CAUSE OF ACTION, AND (4) DISCOVERY DURING TRIAL OF EVIDENCE THAT WOULD CONSTITUTE A GROUND FOR DISMISSAL.

RESPONDENTS’ MOTION TO DISMISS WAS BASED ON AN EVENT THAT TRANSPIRED AFTER IT FILED ITS ANSWER. THIS EVENT WAS THE DISMISSAL BY CA OF THE ANNULMENT OF FORECLOSURE CASE.

THE CONTEMPT CASE IS BASED ON PETITIONER’S SELLING THE PROPERTY DESPITE AN INJUNCTION PROHIBITING SUCH ACT. BUT THE MAIN CASE WAS LATER DISMISSED BY CA. RESPONDENT THEN FILED A MOTION TO DISMISS CONTEMPT CASE BECAUSE THE INJUNCTION VIOLATED IS ALREADY DISSOLVED. RTC AGREED AND IMMEDIATELY DISMISSED THE CONTEMPT CASE EVEN THOUGH IT WAS JUST ON PRE-TRIAL STAGE ON THE GROUND THAT THE CASE WAS MOOT. WAS RTC CORRECT?

NO.

A CASE IS MOOT WHEN IT CEASES TO PRESENT A , JUSTICIABLE CONTROVERSY BY VIRTUE OF SUPERVENING EVENTS SO THAT A DECLARATION THEREON WOULD BE OF NO PRACTICAL VALUE.47 COURTS DECLINE JURISDICTION OVER IT AS THERE IS NO SUBSTANTIAL RELIEF TO WHICH PETITIONER WILL BE ENTITLED AND WHICH · WILL ANYWAY BE NEGATED BY THE DISMISSAL OF THE PETITION.

HERE, THE CONSEQUENT DISSOLUTION OF THE 2000 WRIT DID NOT RENDER THE CONTEMPT CASE MOOT AND ACADEMIC.

THE ACT WAS COMMITTED WHILE THE INJUNCTION WAS STILL EFFECTIVE.

AN INJUNCTION OR RESTRAINING ORDER WHICH IS NOT VOID MUST BE OBEYED WHILE IT REMAINS IN FULL FORCE AND EFFECT, AND HAS NOT BEEN OVERTURNED, THAT IS, IN GENERAL, UNTIL THE INJUNCTION OR RESTRAINING ORDER HAS BEEN SET ASIDE, VACATED, OR MODIFIED.

THE INJUNCTION MUST BE OBEYED IRRESPECTIVE OF THE ULTIMATE VALIDITY OF THE ORDER, AND NO MATTER HOW UNREASONABLE AND UNJUST THE INJUNCTION MAY BE IN ITS TERMS.

ARE RESPONDENTS THEN ALREADY GUILTY OF INDIRECT CONTEMPT?

IT IS NOT FOR SC TO DECIDE.

IT MAY BE NOTED THAT THE CONTEMPT CASE WAS HOWEVER DISMISSED WHILE IT WAS ONLY IN THE PRE-TRIAL STAGE AND CLEARLY BEFORE THE PARTIES COULD PRESENT THEIR EVIDENCE.

PROCEEDINGS FOR INDIRECT CONTEMPT OF COURT REQUIRE NORMAL ADVERSARIAL PROCEDURES. IT IS NOT SUMMARY IN CHARACTER. THE PROCEEDINGS FOR THE PUNISHMENT OF THE CONTUMACIOUS ACT COMMITTED OUTSIDE THE PERSONAL KNOWLEDGE OF THE JUDGE GENERALLY NEED THE OBSERVANCE OF ALL THE ELEMENTS OF DUE PROCESS OF LAW, THAT IS, NOTICE, WRITTEN CHARGES, AND AN OPPORTUNITY TO DENY AND TO DEFEND SUCH CHARGES BEFORE GUILT IS ADJUDGED AND  SENTENCE IMPOSED.

THUS, THE CONTEMPT CASE WAS REFERRED TO RTC FOR FURTHER PROCEEDINGS.

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