J.A.B. Bulao & Associates

JOVITO S. OLAZO VS. JUSTICE DANTE O. TINGA (RET.) (A.M. NO. 10-5-7-SC, 07 DECEMBER 2010) SUBJECT: DEFINITION OF PRACTICE OF LAW; ACCOUNTABILITY OF GOVERNMENT LAWYERS; ON PRIVATE PRACTICE BY GOVT LAWYERS; RULE ON PRACTICE OF LAW UPON LEAVING GOVERNMENT SERVICE.

DOCTRINES:

        DEFINITION OF PRACTICE OF LAW.

“IN CAYETANO V. MONSOD,^[1][28] WE DEFINED THE PRACTICE OF LAW AS ANY ACTIVITY, IN AND OUT OF COURT, THAT REQUIRES THE APPLICATION OF LAW, LEGAL PROCEDURE, KNOWLEDGE, TRAINING AND EXPERIENCE. MOREOVER, WE RULED THAT TO ENGAGE IN THE PRACTICE OF LAW IS TO PERFORM THOSE ACTS WHICH ARE CHARACTERISTICS OF THE PROFESSION; TO PRACTICE LAW IS TO GIVE NOTICE OR RENDER ANY KIND OF SERVICE, WHICH DEVICE OR SERVICE REQUIRES THE USE IN ANY DEGREE OF LEGAL KNOWLEDGE OR SKILL.”

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“THE COMPLAINANT, TOO, FAILED TO SUFFICIENTLY ESTABLISH THAT THE RESPONDENT WAS ENGAGED IN THE PRACTICE OF LAW. AT FACE VALUE, THE LEGAL SERVICE RENDERED BY THE RESPONDENT WAS LIMITED ONLY IN THE PREPARATION OF A SINGLE DOCUMENT.  IN BORJA, SR. V. SULYAP, INC.,^[2][32] WE SPECIFICALLY DESCRIBED PRIVATE PRACTICE OF LAW AS ONE THAT CONTEMPLATES A SUCCESSION OF ACTS OF THE SAME NATURE HABITUALLY OR CUSTOMARILY HOLDING ONE’S SELF TO THE PUBLIC AS A LAWYER.

ACCOUNTABILITY OF A GOVERNMENT LAWYER IN PUBLIC OFFICE

“CANON 6 OF THE CODE OF PROFESSIONAL RESPONSIBILITY HIGHLIGHTS THE CONTINUING STANDARD OF ETHICAL CONDUCT TO BE OBSERVED BY GOVERNMENT LAWYERS IN THE DISCHARGE OF THEIR OFFICIAL TASKS. IN ADDITION TO THE STANDARD OF CONDUCT LAID DOWN UNDER R.A. NO. 6713 FOR GOVERNMENT EMPLOYEES, A LAWYER IN THE GOVERNMENT SERVICE IS OBLIGED TO OBSERVE THE STANDARD OF CONDUCT UNDER THE CODE OF PROFESSIONAL RESPONSIBILITY. 

SINCE PUBLIC OFFICE IS A PUBLIC TRUST, THE ETHICAL CONDUCT DEMANDED UPON LAWYERS IN THE GOVERNMENT SERVICE IS MORE EXACTING THAN THE STANDARDS FOR THOSE IN PRIVATE PRACTICE. LAWYERS IN THE GOVERNMENT SERVICE ARE SUBJECT TO CONSTANT PUBLIC SCRUTINY UNDER NORMS OF PUBLIC ACCOUNTABILITY.  THEY ALSO BEAR THE HEAVY BURDEN OF HAVING TO PUT ASIDE THEIR PRIVATE INTEREST IN FAVOR OF THE INTEREST OF THE PUBLIC; THEIR PRIVATE ACTIVITIES SHOULD NOT INTERFERE WITH THE DISCHARGE OF THEIR OFFICIAL FUNCTIONS.^[3][11]

THE FIRST CHARGE INVOLVES A VIOLATION OF RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY.  IT IMPOSES THE FOLLOWING RESTRICTIONS IN THE CONDUCT OF A GOVERNMENT LAWYER:

A LAWYER IN THE GOVERNMENT SERVICE SHALL NOT USE HIS PUBLIC POSITION TO PROMOTE OR ADVANCE HIS PRIVATE INTERESTS, NOR ALLOW THE LATTER TO INTERFERE WITH HIS PUBLIC DUTIES.

THE ABOVE PROVISION PROHIBITS A LAWYER FROM USING HIS OR HER PUBLIC POSITION TO: (1) PROMOTE PRIVATE INTERESTS; (2) ADVANCE PRIVATE INTERESTS; OR (3) ALLOW PRIVATE INTEREST TO INTERFERE WITH HIS OR HER PUBLIC DUTIES. WE PREVIOUSLY HELD THAT THE RESTRICTION EXTENDS TO ALL GOVERNMENT LAWYERS WHO USE THEIR PUBLIC OFFICES TO PROMOTE THEIR PRIVATE INTERESTS.^[4][12]

IN HUYSSEN V. GUTIERREZ,^[5][13] WE DEFINED PROMOTION OF PRIVATE INTEREST TO INCLUDE SOLICITING GIFTS OR ANYTHING OF MONETARY VALUE IN ANY TRANSACTION REQUIRING THE APPROVAL OF HIS OR HER OFFICE, OR MAY BE AFFECTED BY THE FUNCTIONS OF HIS OR HER OFFICE.  IN ALI V. BUBONG,^[6][14] WE RECOGNIZED THAT PRIVATE INTEREST IS NOT LIMITED TO DIRECT INTEREST, BUT EXTENDS TO ADVANCING THE INTEREST OF RELATIVES.  WE ALSO RULED THAT PRIVATE INTEREST INTERFERES WITH PUBLIC DUTY WHEN THE RESPONDENT USES THE OFFICE AND HIS OR HER KNOWLEDGE OF THE INTRICACIES OF THE LAW TO BENEFIT RELATIVES.^[7][15] 

IN VITRIOLO V. DASIG,^[8][16]  WE FOUND THE ACT OF THE RESPONDENT (AN OFFICIAL OF THE COMMISSION ON HIGHER EDUCATION) OF EXTORTING MONEY FROM PERSONS WITH APPLICATIONS OR REQUESTS PENDING BEFORE HER OFFICE TO BE A SERIOUS BREACH OF RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY.^[9][17] WE REACHED THE SAME CONCLUSION IN HUYSSEN, WHERE WE FOUND THE RESPONDENT (AN EMPLOYEE OF THE BUREAU OF IMMIGRATION AND DEPORTATION) LIABLE UNDER RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY, BASED ON THE EVIDENCE SHOWING THAT HE DEMANDED MONEY FROM THE COMPLAINANT WHO HAD A PENDING APPLICATION FOR VISAS BEFORE HIS OFFICE.^[10][18] 

SIMILARLY, IN IGOY V. SORIANO^[11][19] WE FOUND THE RESPONDENT (A COURT ATTORNEY OF THIS COURT) LIABLE FOR VIOLATING RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY, AFTER CONSIDERING THE EVIDENCE SHOWING THAT HE DEMANDED AND RECEIVED MONEY FROM THE COMPLAINANT WHO HAD A PENDING CASE BEFORE THIS COURT.”

RULE ON PRIVATE PRACTICE OF LAWYERS WHO ARE IN GOVERNMENT.

“AS A RULE, GOVERNMENT LAWYERS ARE NOT ALLOWED TO ENGAGE IN THE PRIVATE PRACTICE OF THEIR PROFESSION DURING THEIR INCUMBENCY.^[12][29]  BY WAY OF EXCEPTION, A GOVERNMENT LAWYER CAN ENGAGE IN THE PRACTICE OF HIS OR HER PROFESSION UNDER THE FOLLOWING CONDITIONS: FIRST, THE PRIVATE PRACTICE IS AUTHORIZED BY THE CONSTITUTION OR BY THE LAW; AND SECOND, THE PRACTICE WILL NOT CONFLICT OR TEND TO CONFLICT WITH HIS OR HER OFFICIAL FUNCTIONS.^[13][30]  THE LAST PARAGRAPH OF SECTION 7 PROVIDES AN EXCEPTION TO THE EXCEPTION.  IN CASE OF LAWYERS SEPARATED FROM THE GOVERNMENT SERVICE WHO ARE COVERED UNDER SUBPARAGRAPH (B) (2) OF SECTION 7 OF R.A. NO. 6713, A ONE-YEAR PROHIBITION IS IMPOSED TO PRACTICE LAW IN CONNECTION WITH ANY MATTER BEFORE THE OFFICE HE USED TO BE WITH.”

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DECISION

BRION, J.:

Before us is the disbarment case against retired Supreme Court Associate Justice Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo (complainant).  The respondent is charged of violating Rule 6.02,^[14][1] Rule 6.03^[15][2] and Rule 1.01^[16][3] of the Code of Professional Responsibility for representing conflicting interests.

Factual Background

          In March 1990, the complainant filed a sales application covering a parcel of land situated in Barangay Lower Bicutan in the Municipality of Taguig. The land (subject land) was previously part of Fort Andres Bonifacio that was segregated and declared open for disposition pursuant to Proclamation No. 2476,^[17][4] issued on January 7, 1986, and Proclamation No. 172,^[18][5] issued on October 16, 1987.

To implement Proclamation No. 172, Memorandum No. 119 was issued by then Executive Secretary Catalino Macaraig, creating a Committee on Awards whose duty was to study, evaluate, and make a recommendation on the applications to purchase the lands declared open for disposition. The Committee on Awards was headed by the Director of Lands and the respondent was one of the Committee members, in his official capacity as the Congressman of Taguig and Pateros (from 1987 to 1998); the respondent’s district includes the areas covered by the proclamations.

The First Charge: Violation of Rule 6.02

In the complaint,^[19][6] the complainant claimed that the respondent abused his position as Congressman and as a member of the Committee on Awards when he unduly interfered with the complainant’s sales application because of his personal interest over the subject land. The complainant alleged that the respondent exerted undue pressure and influence over the complainant’s father, Miguel P. Olazo, for the latter to contest the complainant’s sales application and claim the subject land for himself.  The complainant also alleged that the respondent prevailed upon Miguel Olazo to accept, on various dates, sums of money as payment of the latter’s alleged rights over the subject land. The complainant further claimed that the respondent brokered the transfer of rights of the subject land between Miguel Olazo and Joseph Jeffrey Rodriguez, who is the nephew of the respondent’s deceased wife.

As a result of the respondent’s abuse of his official functions, the complainant’s sales application was denied. The conveyance of rights to Joseph Jeffrey Rodriguez and his sales application were subsequently given due course by the Department of Environment and Natural Resources (DENR).

The Second Charge: Violation of Rule 6.03

The second charge involves another parcel of land within the proclaimed areas belonging to Manuel Olazo, the complainant’s brother.  The complainant alleged that the respondent persuaded Miguel Olazo to direct Manuel to convey his rights over the land to Joseph Jeffrey Rodriguez. As a result of the respondent’s promptings, the rights to the land were transferred to Joseph Jeffrey Rodriguez.

In addition, the complainant alleged that in May 1999, the respondent met with Manuel for the purpose of nullifying the conveyance of rights over the land to Joseph Jeffrey Rodriguez. The complainant claimed that the respondent wanted the rights over the land transferred to one Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig.  The respondent in this regard executed an “Assurance” where he stated that he was the lawyer of Ramon Lee and Joseph Jeffrey Rodriguez.

The Third Charge: Violation of  Rule 1.01

The complainant alleged that the respondent engaged in unlawful conduct considering his knowledge that Joseph Jeffrey Rodriguez was not a qualified beneficiary under Memorandum No. 119. The complainant averred that Joseph Jeffrey Rodriguez is not a bona fide resident of the proclaimed areas and does not qualify for an award. Thus, the approval of his sales application by the Committee on Awards amounted to a violation of the objectives of Proclamation No. 172 and Memorandum No. 119. 

The complainant also alleged that the respondent violated Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act (R.A.) No. 6713  since he engaged in the practice of law, within the one-year prohibition period, when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards. 

          In his Comment,^[20][7] the respondent claimed that the present complaint is the third malicious charge filed against him by the complainant. The first one was submitted before the Judicial and Bar Council when he was nominated as an Associate Justice of the Supreme Court; the second complaint is now pending  with the Office of the Ombudsman, for alleged violation of Section 3(e) and (i) of R.A. No. 3019, as amended.

With his own supporting documents, the respondent presented a different version of the antecedent events.

The respondent asserted that Miguel Olazo owned the rights over the subject land and he later conveyed these rights to Joseph Jeffrey Rodriguez. Miguel Olazo’s rights over the subject land and the transfer of his rights to Joseph Jeffrey Rodriguez were duly recognized by the Secretary of the DENR before whom the conflict of rights over the subject land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand, and the complainant on the other hand) was brought. In its decision, the DENR found Joseph Jeffrey Rodriguez a qualified applicant, and his application over the subject land was given due course.  The respondent emphasized that the DENR decision is now final and executory.  It was affirmed by the Office of the President, by the Court of Appeals and by the Supreme Court.

          The respondent also advanced the following defenses:

(1) He denied the complainant’s allegation that Miguel Olazo told him (complainant) that the respondent had been orchestrating to get the subject land. The respondent argued that this allegation was without corroboration and was debunked by the affidavits of Miguel Olazo and Francisca Olazo, the complainant’s sister.

(2) He denied the complainant’s allegation that he offered the complainant P50,000.00 for the subject land and that he (the respondent) had exerted undue pressure and influence on Miguel Olazo to claim the rights over the subject land. The respondent also denied that he had an inordinate interest in the subject land.

(3) He claimed that there was nothing wrong in signing as a witness in Miguel Olazo’s affidavit where the latter asserted his rights over the subject land. The affidavit merely attested to the truth.

(4) He asserted that he and Miguel Olazo were cousins and that the latter decided to sell his rights over the subject land for the medical treatment of his heart condition and the illness of his daughter, Francisca Olazo.  The respondent insisted that the money he extended to them was a form of loan. 

(5)  The respondent’s participation in the transaction between Miguel Olazo and Joseph Jeffrey Rodriguez involved the payment of the loan that the respondent extended to Miguel Olazo.

(6) Manuel’s belated and secondhand allegation in his Sinumpaang Salaysay, dated January 20, 2000, regarding what his father told him, cannot prevail over his earlier Sinumpaang Salaysay with Francisca Olazo, dated August 2, 1997. In the said Sinumpaang Salaysay, Manuel categorically asserted that his father Miguel Olazo, not the complainant, was the farmer-beneficiary. Manuel also expressed his agreement to the transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of Joseph Jeffrey Rodriguez, and the withdrawal of his father’s application to give way to Joseph Jeffrey Rodriguez’s application. 

(7) The complainant’s allegation that the respondent had pressured and influenced Miguel Olazo to sell the subject land was not sufficient as it was lacking in specificity and corroboration. The DENR decision was clear that the complainant had no rights over the subject land.

 The respondent additionally denied violating Rule 1.01 of the Code of Professional Responsibility.  He alleged that during his third term as Congressman from 1995 to 1997, the conflicting applications of the complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not included in the agenda for deliberation of the Committee on Awards.  Rather, their conflicting claims and their respective supporting documents were before the Office of the Regional Director, NCR of the DENR.  This office ruled over the conflicting claims only on August 2, 2000. This ruling became the basis of the decision of the Secretary of the DENR. 

Similarly, the respondent cannot be held liable under Rule 6.02 of the Code of Professional Responsibility since the provision applies to lawyers in the government service who are allowed by law to engage in private law practice and to those who, though prohibited from engaging in the practice of law, have friends, former associates and relatives who are in the active practice of law.^[21][8] In this regard, the respondent had already completed his third term in Congress and his stint in the Committee on Awards when he represented Joseph Jeffrey Rodriguez on May 24, 1999.

Lastly, the respondent claimed that he cannot be held liable under Rule 6.03 of the Code of Professional Responsibility since he did not intervene in the disposition of the conflicting applications of the complainant and Joseph Jeffrey Rodriguez because the applications were not submitted to the Committee on Awards when he was still a member.

The Court’s Ruling

Generally, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.^[22][9]  He may be disciplined by this Court as a member of the Bar only when his misconduct also constitutes a violation of his oath as a lawyer.^[23][10] 

The issue in this case calls for a determination of whether the respondent’s actions constitute a breach of the standard ethical conduct – first, while the respondent was still an elective public official and a member of the Committee on Awards; and second, when he was no longer a public official, but a private lawyer who represented a client before the office he was previously connected with.   

          After a careful evaluation of the pleadings filed by both parties and their respective pieces of evidence, we resolve to dismiss the administrative complaint.

Accountability of a government lawyer in public office

     Canon 6 of the Code of Professional Responsibility highlights the continuing standard of ethical conduct to be observed by government lawyers in the discharge of their official tasks. In addition to the standard of conduct laid down under R.A. No. 6713 for government employees, a lawyer in the government service is obliged to observe the standard of conduct under the Code of Professional Responsibility. 

Since public office is a public trust, the ethical conduct demanded upon lawyers in the government service is more exacting than the standards for those in private practice. Lawyers in the government service are subject to constant public scrutiny under norms of public accountability.  They also bear the heavy burden of having to put aside their private interest in favor of the interest of the public; their private activities should not interfere with the discharge of their official functions.^[24][11]

The first charge involves a violation of Rule 6.02 of the Code of Professional Responsibility.  It imposes the following restrictions in the conduct of a government lawyer:

A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

The above provision prohibits a lawyer from using his or her public position to: (1) promote private interests; (2) advance private interests; or (3) allow private interest to interfere with his or her public duties. We previously held that the restriction extends to all government lawyers who use their public offices to promote their private interests.^[25][12]

          In Huyssen v. Gutierrez,^[26][13] we defined promotion of private interest to include soliciting gifts or anything of monetary value in any transaction requiring the approval of his or her office, or may be affected by the functions of his or her office.  In Ali v. Bubong,^[27][14] we recognized that private interest is not limited to direct interest, but extends to advancing the interest of relatives.  We also ruled that private interest interferes with public duty when the respondent uses the office and his or her knowledge of the intricacies of the law to benefit relatives.^[28][15]

 In Vitriolo v. Dasig,^[29][16]  we found the act of the respondent (an official of the Commission on Higher Education) of extorting money from persons with applications or requests pending before her office to be a serious breach of Rule 6.02 of the Code of Professional Responsibility.^[30][17] We reached the same conclusion in Huyssen, where we found the respondent (an employee of the Bureau of Immigration and Deportation) liable under Rule 6.02 of the Code of Professional Responsibility, based on the evidence showing that he demanded money from the complainant who had a pending application for visas before his office.^[31][18] 

          Similarly, in Igoy v. Soriano^[32][19] we found the respondent (a Court Attorney of this Court) liable for violating Rule 6.02 of the Code of Professional Responsibility, after considering the evidence showing that he demanded and received money from the complainant who had a pending case before this Court.

Applying these legal precepts to the facts of the case, we find the absence of any concrete proof that the respondent abused his position as a Congressman and as a member of the Committee on Awards in the manner defined under Rule 6.02 of the Code of Professional Responsibility.

First, the records do not clearly show if the complainant’s sales application was ever brought before the Committee on Awards. By the complaint’s own account, the complainant filed a sales application in March 1990 before the Land Management Bureau.  By 1996, the complainant’s sales application was pending before the Office of the Regional Director, NCR of the DENR due to the conflicting claims of Miguel Olazo, and, subsequently, of Joseph Jeffrey Rodriguez. The records show that it was only on August 2, 2000 that the Office of the Regional Director, NCR of the DENR rendered its decision, or after the term of the respondent’s elective public office and membership to the Committee on Awards, which expired in 1997.

 These circumstances do not show that the respondent did in any way promote, advance or use his private interests in the discharge of his official duties. To repeat, since the sales application was not brought before the Committee on Awards when the respondent was still a member, no sufficient basis exists to conclude that he used his position to obtain personal benefits.  We note in this regard that the denial of the complainant’s sales application over the subject land was made by the DENR, not by the Committee on Awards. 

Second, the complainant’s allegation that the respondent “orchestrated” the efforts to get the subject land does not specify how the orchestration was undertaken.  What appears clear in the records is the uncorroborated Sinumpaang Salaysay of Miguel Olazo, dated May 25, 2003,^[33][20] categorically stating that the respondent had no interest in the subject land, and neither was he a contracting party in the transfer of his rights over the subject land.  In the absence of any specific charge, Olazo’s disclaimer is the nearest relevant statement on the respondent’s alleged participation, and we find it to be in the respondent’s favor.

Third, the other documents executed by Miguel Olazo, that the complainant presented to support his claim that the respondent exerted undue pressure and influence over his father (namely: the letter, dated June 22, 1996, to the DENR Regional Director-NCR;^[34][21] the Sinumpaang Salaysay dated July 12, 1996;^[35][22] and the Sinumpaang Salaysay dated July 17, 1996^[36][23]), do not contain any reference to the alleged pressure or force exerted by the respondent over Miguel Olazo. The documents merely showed that the respondent helped Miguel Olazo in having his farm lots (covered by the proclaimed areas) surveyed.  They also showed that the respondent merely acted as a witness in the Sinumpaang Salaysay dated July 17, 1996.  To our mind, there are neutral acts that may be rendered by one relative to another, and do not show how the respondent could have influenced the decision of Miguel Olazo to contest the complainant’s sales application.  At the same time, we cannot give any credit to the Sinumpaang Salaysay, dated January 20, 2000, of Manuel.  They are not only hearsay but are contrary to what Miguel Olazo states on the record.  We note that Manuel had no personal knowledge, other than what Miguel Olazo told him, of the force allegedly exerted by the respondent against Miguel Olazo.

In turn, the respondent was able to provide a satisfactory explanation – backed by corroborating evidence – of the nature of the transaction in which he gave the various sums of money to Miguel Olazo and Francisca Olazo in the year 1995. In her affidavits dated May 25, 2003^[37][24] and July 21, 2010,^[38][25]  Francisca Olazo corroborated the respondent’s claim that the sums of money he extended to her and Miguel Olazo were loans used for their medical treatment. Miguel Olazo, in his Sinumpaang Salaysay dated May 25, 2003, asserted that some of the money borrowed from the respondent was used for his medical treatment and hospitalization expenses.

The affidavit of Joseph Jeffrey Rodriguez further corroborated the respondent’s claim that the latter’s involvement was limited to being paid the loans he gave to Miguel Olazo and Francisca Olazo. According to Joseph Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of the loan would be directly paid by Joseph Jeffrey Rodriguez to the respondent and the amount paid would be considered as part of the purchase price of the subject land.^[39][26]

It also bears stressing that a facial comparison of the documentary evidence, specifically the dates when the sums of money were extended by the respondent – on February 21, 1995, September 2, 1995 and October 17, 1995, and the date when the Deed of Conveyance^[40][27] over the subject land was executed or on October 25, 1995, showed that the sums of money were extended prior to the transfer of rights over the subject land. These pieces of evidence are consistent with the respondent’s allegation that Miguel Olazo decided to sell his rights over the subject land to pay the loans he obtained from the respondent and, also, to finance his continuing medical treatment.

Private practice of law after separation from public office

As proof that the respondent was engaged in an unauthorized practice of law after his separation from the government service, the complainant presented the Sinumpaang Salaysay, dated January 20, 2000, of Manuel and the document entitled “Assurance” where the respondent legally represented Ramon Lee and Joseph Jeffrey Rodriguez. Nevertheless, the foregoing pieces of evidence fail to persuade us to conclude that there was a violation of Rule 6.03 of the Code of Professional Responsibility.

In Cayetano v. Monsod,^[41][28] we defined the practice of law as any activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.

    Under the circumstances, the foregoing definition should be correlated with R.A. No. 6713 and Rule 6.03 of the Code of Professional Responsibility which impose certain restrictions on government lawyers to engage in private practice after their separation from the service.

Section 7(b)(2) of R.A. No. 6713 reads:

Section 7. Prohibited Acts and Transactions. — In addition to acts and

omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x  x  x  x

(b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

x  x  x  x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; x  x  x

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

As a rule, government lawyers are not allowed to engage in the private practice of their profession during their incumbency.^[42][29]  By way of exception, a government lawyer can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict or tend to conflict with his or her official functions.^[43][30]  The last paragraph of Section 7 provides an exception to the exception.  In case of lawyers separated from the government service who are covered under subparagraph (b) (2) of Section 7 of R.A. No. 6713, a one-year prohibition is imposed to practice law in connection with any matter before the office he used to be with.

Rule 6.03 of the Code of Professional Responsibility echoes this restriction and prohibits lawyers, after leaving the government service, to accept engagement or employment in connection with any matter in which he had intervened while in the said service.  The keyword in Rule 6.03 of the Code of Professional Responsibility is the term “intervene” which we previously interpreted to include an act of a person who has the power to influence the proceedings.^[44][31]  Otherwise stated, to fall within the ambit of Rule 6.03 of the Code of Professional Responsibility, the respondent must have accepted engagement or employment in a matter which, by virtue of his public office, he had previously exercised power to  influence the outcome of the proceedings.

As the records show, no evidence exists showing that the respondent previously interfered with the sales application covering Manuel’s land when the former was still a member of the Committee on Awards.  The complainant, too, failed to sufficiently establish that the respondent was engaged in the practice of law. At face value, the legal service rendered by the respondent was limited only in the preparation of a single document.  In Borja, Sr. v. Sulyap, Inc.,^[45][32] we specifically described private practice of law as one that contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer.

In any event, even granting that respondent’s act fell within the definition of practice of law, the available pieces of evidence are insufficient to show that the legal representation was made before the Committee on Awards, or that the Assurance was intended to be presented before it.  These are matters for the complainant to prove and we cannot consider any uncertainty in this regard against the respondent’s favor.

Violation of Rule 1.01

Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or deceitful conduct. From the above discussion, we already struck down the complainant’s allegation that respondent engaged in an unauthorized practice of law when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards.

We find that a similar treatment should be given to the complainant’s claim that the respondent violated paragraph 4(1)^[46][33] of Memorandum No. 119 when he encouraged the sales application of Joseph Jeffrey Rodriguez despite his knowledge that his nephew was not a qualified applicant.  The matter of  Joseph Jeffrey Rodriguez’s qualifications to apply for a sales application over lots covered by the proclaimed areas has been resolved in the affirmative  by the Secretary of the DENR in the decision dated April 3, 2004,^[47][34] when the DENR gave due course to his sales application over the subject land.  We are, at this point, bound by this finding.

As pointed out by the respondent, the DENR decision was affirmed by the Office of the President, the Court of Appeals^[48][35] and, finally, the Court, per our Minute Resolution, dated October 11, 2006, in G.R. No. 173453. In our Resolution, we dismissed the petition for review on certiorari filed by the complainant after finding, among others, that no reversible error was committed by the Court of Appeals in its decision.^[49][36]

All told, considering the serious consequences of the penalty of disbarment or suspension of a member of the Bar, the burden rests on the complainant to present clear, convincing and satisfactory proof for the Court to exercise its disciplinary powers.^[50][37]  The respondent generally is under no obligation to prove his/her defense,^[51][38] until the burden shifts to him/her because of what the complainant has proven.  Where no case has in the first place been proven, nothing has to be rebutted in defense.^[52][39]

With this in mind, we resolve to dismiss the administrative case against the respondent for the complainant’s failure to prove by clear and convincing evidence that the former committed unethical infractions warranting the exercise of the Court’s disciplinary power.

WHEREFORE, premises considered, we DISMISS the administrative case for violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional Responsibility, filed against retired Supreme Court Associate Justice Dante O. Tinga, for lack of merit.

SO ORDERED. 

                                                          ARTURO D. BRION

                                                             Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Associate Justice

TRANSCEPT CONSTRUCTION AND MANAGEMENT PROFESSIONALS, INC. VS. TERESA C. AGUILAR (G.R. NO. 177556, 08 DECEMBER 2010). SUBJECT: CIAC CASE; COMPUTATION OF UNACCOMPLISHED WORKS, LIQUIDATED DAMAGES, CONSULTANCY SERVICES.)

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

CARPIO, J.:

The Case

          Before the Court is a petition for review assailing the 24 January 2007 Decision^[1][1] and the 20 April 2007 Resolution^[2][2] of the Court of Appeals in CA-G.R. SP No. 93021.

The Antecedent Facts

          From the decisions of the Court of Appeals and the Construction Industry Arbitration Commission (CIAC), we gathered the following facts:

          On 18 August 2004, Teresa C. Aguilar (Aguilar) entered into an Owner-General Contractor Agreement (First Contract) with Transcept Construction and Management Professionals, Inc. (Transcept) for the construction of a two-storey split level vacation house (the Project) located at Phase 3, Block 3, Lot 7, Canyon Woods, Laurel, Batangas.  Under the First Contract, the Project would cost P3,486,878.64 and was to be completed within 210^[3][3] working days from the date of the First Contract or on 7 June 2005.  Aguilar paid a downpayment of P1 million on 27 August 2004.

          On 30 November 2004, Transcept submitted its First Billing to Aguilar for work accomplishments from start to 15 November 2004, in accordance with the Progressive Billing payment scheme.  Aguilar paid P566,356.

          On 1 February 2005, Aguilar received the Second Billing amounting to P334,488 for the period of 16 November 2004 to 15 December 2004.  Transcept informed Aguilar that non-payment would force them to halt all works on the Project.  Aguilar questioned the Second Billing as unusual for being 45 days ahead of actual accomplishment.  Aguilar did not pay and on 2 February 2005, Transcept stopped working on the Project.

          Thereafter, Aguilar hired ASTEC, a duly accredited testing laboratory, to test Transcept’s quality of work.  The test showed substandard works done by Transcept.  In a letter dated 7 March 2005, Transcept outlined its program to reinforce or redo the substandard works discovered by ASTEC.  On 28 March 2005, ASTEC, through Engr. Jaime E. Rioflorido (Engr. Rioflorido), sent Aguilar an Evaluation of Contractor’s Performance which showed that aside from the substandard workmanship and use of substandard materials, Transcept was unreasonably and fraudulently billing Aguilar.  Of the downpayment amounting to P1,632,436.29, Engr. Rioflorido’s  reasonable assessment of Transcept’s accomplishment amounted only to P527,875.94.  Engr. Rioflorido recommended the partial demolition of Transcept’s work. 

          On 30 May 2005, Transcept and Aguilar entered into a Construction Contract (Second Contract) to extend the date of completion from 7 June 2005 to 29 July 2005 and to use up the P1.6 million downpayment paid by Aguilar.  Aguilar hired the services of Engr. Edgardo Anonuevo (Engr. Anonuevo) to ensure that the works would comply with the plans in the Second Contract. 

          Transcept failed to finish the Project on 29 July 2005, alleging that the delay was due to additional works ordered by Aguilar.  Transcept also asked for payment of the additional amount of P290,824.96.  Aguilar countered that the Second Contract did not provide for additional works. 

          On 2 September 2005, Aguilar sent a demand letter to Transcept asking for payment of P581,844.54 for refund and damages.  Transcept ignored the demand letter.  On 6 September 2005, Aguilar filed a complaint against Transcept before CIAC.

The Decision of the CIAC

          CIAC assessed the work accomplished with the corresponding costs, as against the downpayment of P1,632,436.29 which was the contract price in the Second Contract.  On 16 January 2006, the CIAC promulgated its Decision.^[4][4]  

          For  Labor and Materials of the Scope of Work, the CIAC credited the accomplishment to be P1,110,440.13 representing Aguilar’s estimate  which was  reassessed by the CIAC after the ocular inspection conducted by the parties.  For indirect costs for General Requirements of the Scope of Work, the CIAC’s computation was P275,355.50.  The CIAC noted that Aguilar did not submit any evidence on indirect costs and her counsel did not cross-examine Transcept’s witnesses on the matter.  For the Septic Tank, which the CIAC found to be part of the Second Contract, the CIAC assessed the accomplishment to amount to P7,300.  The CIAC added 5% Contingencies and 10% Contractor’s Profit which are the minimum factors in making estimates practiced in the construction industry.  The CIAC thus estimated that the total accomplishment amounted to P1,602,359.97 which was  P30,076.72 below the contract price of P1,632,436.29.  The tabulated amount shows:

Direct Costs for Labor and Materials                              P1,110,440.13

Indirect Costs for General Requirements                   275,355.50

Septic Tank                                                                             7,300.00

  Sub-Total                                                         P1,393,095.63

Plus 5% Contingencies                                               69,654.78

Add 10% of Sub-Total for Contractor’s Profit               139,309.56    

  Total                                                                 P1,602,359.97                                                

          The CIAC ruled that the accomplishment of P1,602,359.97 was 98.16% of P1,632,436.29, which was way above 95% and should therefore be considered as substantial completion of the Project.  As such, the CIAC ruled that liquidated damages could not be awarded to Aguilar.  The CIAC, however, ruled that Aguilar was entitled to P75,000 as Consultancy Expenses.

          The CIAC also found that Aguilar demanded extra works which entailed additional working days.  The CIAC computed that the additional works performed over and above the Second Contract amounted to P189,909.91. 

          The dispositive portion of the CIAC’s decision reads:

In view of all the foregoing, it is hereby ordered that:

1.                  Respondent [Transcept] shall pay Claimant [Aguilar] the amount of P30,076.72, representing the unaccomplished works in the contract, plus 6% interests from the date of the promulgation of this case, until fully paid.

2.                  Respondent shall pay Claimant the amount of P75,000.00, representing the cost of Consultancy Services, plus 6% interests from the date of the promulgation of this case, until fully paid.

3.                  Claimant shall pay Respondent the amount of P189,909.91, representing the cost of work performed over & above the scope of work in the contract.

4.                  The cost for liquidated damages and cost representing interests of construction bond, prayed for the Claimant, are denied for being without merit.

5.                  Attorney’s fees prayed for by both parties are denied for being without merit.

6.                  Cost of Arbitration shall be shared equally by the parties.

            SO ORDERED.^[5][5]

          Aguilar assailed the CIAC’s decision before the Court of Appeals.

The Decision of the Court of Appeals

         In its 24 January 2007 Decision, the Court of Appeals reversed the CIAC’s decision. 

         The Court of Appeals agreed with the CIAC that Aguilar did not allege in her complaint the amount corresponding to the indirect costs for  General Requirements.  However, the Court of Appeals made a recomputation of the indirect costs for General Requirements based on  P1,632,436.29 and made the following findings:

Direct Costs for Labor and Materials                              P1,110,440.13

Indirect Costs for General Requirements                   128,799.22

Septic Tank                                                                             7,300.00

  Sub-Total                                                         P1,246,539.35

Plus 5% Contingencies                                               62,326.96

Add 10% of Sub-Total for Contractor’s Profit               124,653.93    

  Total                                                                 P1,433,520.24

The Court of Appeals then deducted P1,433,520.24 from P1,632,436.29 and concluded that Aguilar is entitled to P198,916.05 instead of  P30,076.72.

         From the above computation, the Court of Appeals ruled that Transcept only accomplished 87.81% of the contract price thus entitling Aguilar to liquidated damages equivalent to 10% of P1,632,436.29 or P163,243.63.

         The Court of Appeals further ruled that Transcept was not entitled to payment for additional works because they were in fact only rectifications of the works poorly done by Transcept.  Finally, the Court of Appeals ruled that Aguilar was able to prove that she paid P135,000 for consultancy services.

         The dispositive portion of the Court of Appeals’ decision reads:

  WHEREFORE, the foregoing considered, the instant petition is hereby GRANTED and the assailed decision REVERSED AND SET ASIDE.  Accordingly, a new one is entered ordering respondent to pay petitioner the following:

1)                 P198,916.02 for unaccomplished works in the second contract, plus 6% interest from the date of the filing of the case, until fully paid;

2)                 P135,000.00, representing the cost of consultancy services, plus 6% interest from the filing of the case, until fully paid; and

3)                 P163,243.63 as and by way of liquidated damages.

     The award of P189,909.91 in favor of Aguilar for additional works is hereby deleted.

          No costs. 

   SO ORDERED.^[6][6]

         Transcept filed a motion for reconsideration.  In its 20 April 2007 Resolution, the Court of Appeals denied the motion.

         Hence, the petition before this Court.

The Issues

         The issues in this case are the following:

1.                Whether the Court of Appeals erred in holding that Aguilar is entitled to  P198,916.02 instead of  P30,076.72 for unaccomplished works;

2.                Whether the Court of Appeals erred in awarding Aguilar liquidated damages;

3.                Whether the Court of Appeals erred in deleting the CIAC’s award of P189,909.91 to Transcept representing additional works done under the Second Contract; and

4.                Whether the Court of Appeals erred in awarding Aguilar the amount of P135,000 for consultancy services.

The Ruling of this Court

         The petition is partly meritorious.

Refund for Unaccomplished Works

         The Court of Appeals ruled that CIAC erred in adopting Transcept’s computation of unaccomplished works.  The Court of Appeals agreed with Aguilar that the CIAC’s computation was based on what Transcept submitted which was based on the original contract price of P3,486,878.64 instead of the contract price of P1,632,436.29 under the Second Contract. 

         However, the Court of Appeals failed to consider the CIAC’s as well as its own finding that Aguilar did not present any evidence on indirect costs for General Requirements.  In addition, Aguilar’s counsel did not cross-examine Transcept’s witnesses.  In short, Aguilar did not dispute but merely accepted Transcept’s computation on indirect expenses.  Aguilar did not interpose any objection to the computation until after the CIAC ruled that Transcept substantially complied with the Project.  We also note Transcept’s explanation, as well as the CIAC’s finding, that General Requirements refer to mobilization, overhead, insurance, hoarding and protection, temporary facilities, equipment, materials testing, line set out, as-built drawings, and clean out.  They had been used up at the start of the Project.  Hence, costs for General Requirements are not dependent on the amount of the contract because they were incurred at the beginning of the Project.  We should therefore revert to the computation made by the CIAC, as follows:

Direct Costs for Labor and Materials                              P1,110,440.13

Indirect Costs for General Requirements                   275,355.50

Septic Tank                                                                             7,300.00

  Sub-Total                                                         P1,393,095.63

Plus 5% Contingencies                                               69,654.78

Add 10% of Sub-Total for Contractor’s Profit               139,309.56    

  Total                                                                 P1,602,359.97                                                

Liquidated Damages

         Section 20.11(A)(a) of the Construction Industry Authority of the Philippines (CIAP) Document No. 102 provides that “[t]here is substantial completion when the Contractor completes 95% of the Work, provided that the remaining work and the performance of the work necessary to complete the Work shall not prevent the normal use of the completed portion.”

         According to CIAC’s computation, Transcept’s accomplishment amounted to 98.16% of the contract price.  It is beyond the 95% required under CIAP Document No. 102 and is considered a substantial completion of the Project.  We thus agree with CIAC’s application of Article 1234 of the Civil Code, which provides that “[i]f the obligation had been substantially performed in good faith, the obligor may recover as though there had been a strict and complete fulfillment, less damages suffered by the obligee.”^[7][7]

         There being a substantial completion of the Project, Aguilar is not entitled to liquidated damages but only to actual damages of P30,076.72, representing the unaccomplished works in the Second Contract as found by the CIAC, which is the difference between the contract price of P1,632,436.29 and the accomplishment of P1,602,359.97.

Additional Works

         The Second Contract excluded the construction of the following works:

1.                  Architectural Works –  – Roofing System             

2.                  Interior Fit-Out Works/Glass/Windows/CAB/CARP

3.                  Truss System

4.                  Supply and Installation of Plumbing Fixtures and Bathroom        Accessories

5.                  Supply and Installation of Downspout System

6.                  Electrical Roughing-in and Wiring Works

7.                  Supply and Installation of Wiring Devices

8.                  Supply and Installation of Circuit Breakers

9.                Testing and Commissioning.^[8][8]

         The CIAC found that Aguilar demanded additional works from Transcept.  The CIAC found that the additional works include the balcony, lifting of roof beams, and extra fast walls which are not covered by the Second Contract.  However, we agree with the Court of Appeals that the works done were just for correction of the substandard works done under the First Contract.  During the ocular inspection, Aguilar pointed out that the lifting of the roof beam was done because the construction was three meters short of that specified in the First Contact.^[9][9]  Hence, while the roofing system is excluded from the Second Contract, it could not be said that the lifting of the roof beam is an additional work on the part of Transcept.

         The Court notes that the Second Contract was entered into by the parties precisely to correct the substandard works discovered by ASTEC.  Hence, Aguilar should not be made to pay for works done to correct these substandard works.

Consultancy Services

         The Court of Appeals correctly awarded Aguilar the cost of consultancy services amounting to P135,000.  While Engr. Rioflorido was not presented as a witness, it was established that Aguilar hired ASTEC, a duly accredited testing laboratory, to test Transcept’s quality of work, and that Engr. Rioflorido represented ASTEC.  As found by the Court of Appeals, Aguilar paid Engr. Rioflorido the amount of P65,000 for the services, which should be added to the P75,000 consultancy services awarded to Aguilar.^[10][10] 

         WHEREFORE, we AFFIRM the 24 January 2007 Decision and the 20 April 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 93021, with the MODIFICATION that the award of P198,916.02 for unaccomplished works is reduced to P30,076.72, and the award of P163,243.63 for liquidated damages is deleted.

          SO ORDERED.

                                      ANTONIO T. CARPIO

                                            Associate Justice

WE CONCUR:

                RENATO C. CORONA         

           Chief Justice       

ANTONIO EDUARDO B. NACHURA        ROBERTO A. ABAD           

                 Associate Justice                                  Associate Justice

     JOSE C. MENDOZA      

Associate Justice

ATTESTATION

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                    ANTONIO T. CARPIO

                                                                   Associate Justice

                            Chairperson

CERTIFICATION

          Pursuant to Section 13, Article VIII of the Constitution, and the Division  Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                   RENATO C. CORONA

                                                                          Chief Justice

SPOUSES REUBEN DE LA CRUZ AND MINERVA DELA CRUZ VS. RAMON C.PAPAP IV IN HIS CAPACITY AS CO-ADMINISTRATOR OF THE ESTATE OF ANGELA M. BUTTE (G.R. NO. 185899, 08 DECEMBER 2010). SUBJECT: DIRECT TESTIMONY NOT SUBJECTED TO CROSS-EXAMINATION EXPUGNED.

DOCTRINES:

DIRECT TESTIMONY CAN BE IMPUGNED IF NOT CROSS-EXAMINED EVEN IF THE REASON IS THAT THE WITNESS DIED AND THEREFORE COULD NOT BE EXAMINED PROVIDED THAT THE  PARTY WHO SHALL CONDUCT CROSS-EXAMINATION  WAS NOT AT FAULT.

“BUT HAVING THEIR TURN TO CROSS-EXAMINE MYRON IS DIFFERENT FROM THEIR BEING ACCORDED AN OPPORTUNITY TO CROSS-EXAMINE HIM.  THE RTC SET THE DEPOSITION TAKING ON SEPTEMBER 7, 2001 BUT MYRON DIED BEFORE THAT DATE, ON AUGUST 16, 2001.  CONSEQUENTLY, IT WAS NOT THE DEFENDANTS’ FAULT THAT THEY WERE UNABLE TO CROSS-EXAMINE HIM.”

X XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

DECISION

ABAD, J.:

This case is about the plaintiff’s lone witness who passed away due to illness before the adverse party could cross-examine him.

The Facts and the Case

In 1994, the Intestate Estate of Angela M. Butte (the Estate) filed an action for cancellation of titles, recovery of properties, and damages against several defendants, including petitioner spouses Reuben and Minerva Dela Cruz (the Dela Cruzes) before the Regional Trial Court (RTC) of Antipolo City in Civil Cases 94-3447 and 95-3816.  On October 21, 1999 the Estate presented Myron C. Papa (Myron), its executor, to testify on the substance of the complaint.  At the conclusion of Myron’s testimony on that day, the RTC required the Estate and the latter agreed to present Myron anew at the next scheduled hearing to identify the originals of certain exhibits, after which counsels for the defendants, would begin to cross-examine him. 

But the Estate never got around recalling Myron to the witness stand.  He was taken ill and diagnosed as suffering from stage four colon and liver cancer, prompting respondent Ramon C. Papa IV (Ramon), the Estate’s co-administrator, to seek repeated postponements of hearings in the case to allow Myron undergo intensive treatment.  Later, the Estate filed a motion for leave to have the defendants cross-examine Myron by deposition at the hospital where he was confined.  The RTC granted the motion on February 22, 2001^[1][1] and eventually set the deposition-taking on September 7, 2001 but Myron passed away on August 16, 2001.

On November 15, 2001 one of the defendants moved to expunge Myron’s direct testimony.  The Dela Cruzes for their part moved to dismiss the case for failure of the Estate to prosecute it.  On March 13, 2002 the RTC issued an order, denying the two motions based on the ground that the Estate had no control of the circumstances that caused the delay in the case.

On December 3, 2003 the Estate asked leave of court to file its formal offer of exhibits.  On December 5, 2003 the Dela Cruzes filed a motion to strike out Myron’s testimony on the ground of failure to cross-examine him.  Meanwhile, the Estate filed its formal offer of evidence.

In a March 4, 2005 Order,^[2][2] the RTC granted the Dela Cruzes’ motion to strike out Myron’s testimony on the ground that, due to the Estate’s fault, such testimony was never completed, depriving the defendants of the opportunity to cross-examine him.  Because the RTC denied the Estate’s motion for reconsideration,^[3][3] it filed a special civil action of certiorari and mandamus before the Court of Appeals (CA) in CA-G.R. SP 91074, assailing the March 4, 2005 Order.  Meanwhile, on August 16, 2005 the RTC admitted the Dela Cruzes’ demurrer to evidence.

On July 25, 2008 the CA rendered a Decision,^[4][4] granting the petition and setting aside the RTC’s order that struck out Myron’s testimony.  The CA denied the Dela Cruzes’ motion for reconsideration. 

Although the CA likewise set aside the RTC’s denial of the respondent’s documentary evidence and its admission of the Dela Cruzes’ demurrer, it held that the RTC may not be compelled by mandamus to admit the documentary exhibits in issue, since the matter of admitting them is discretionary upon it.  Because the CA declined to reconsider,^[5][5]  the Dela Cruzes filed this petition for review, seeking reinstatement of the RTC’s Order dated March 4, 2005.

The Issue Presented

The key issue in this case is whether or not the CA erred in reinstating Myron’s testimony after the RTC ordered the same stricken out for depriving the defendants of the opportunity to cross-examine him.

The Court’s Ruling

The CA said that the defendants were guilty of unreasonable delay in objecting to Myron’s testimony.  Myron died on August 16, 2001 yet the other defendants moved to expunge his testimony only on November 15, 2001.  On the other hand, the Dela Cruzes filed a similar motion only in December 2003.  Citing Section 36, Rule 132 of the Rules of Court,^[6][6] the CA held that they should have objected to Myron’s testimony when it was offered or soon after the reason for objecting to its admission became apparent.  When they failed to do so, said the CA, the defendants waived their right to object to the same. 

The CA characterized the defendants’ actions as betraying an “intention to defeat the (Estate’s) action through a technicality.”^[7][7]  Because Myron’s testimony was expunged after the respondent Estate had rested its case, it could no longer present other witnesses who may testify on and identify its documentary evidence, thus resulting in its inadmissibility.  The CA ruled that as a result of the RTC’s error in sustaining the defendants’ actions, the Estate was thus “effectively deprived of an opportunity to meet the consequences of the expunction of Myron’s testimony.”^[8][8] 

But it is evident that the defendants’ right to cross-examine Myron did not yet come up when he finished his direct testimony on October 21, 1999.  The Estate undertook to return him to the witness stand to identify for it the originals of certain documents.  Consequently, when Myron was taken ill, the obligation to move the case forward continued to be on the Estate’s side.  Rather than move it, however, the Estate repeatedly asked for the deferment of Myron’s testimony on the chance that he could recover and return to court.  It took the Estate more than a year to remedy the situation by asking the RTC to allow the cross-examination of Myron in the hospital where he was confined.  Thus, only when the Court granted this motion on February 22, 2001 did it become evident that the Estate was waiving the additional direct examination that it reserved on October 21, 1999.  Thus, the turn of the Dela Cruzes to cross-examine Myron came only after February 22, 2001.

But having their turn to cross-examine Myron is different from their being accorded an opportunity to cross-examine him.  The RTC set the deposition taking on September 7, 2001 but Myron died before that date, on August 16, 2001.  Consequently, it was not the defendants’ fault that they were unable to cross-examine him. 

The CA appears too hasty in blaming the defendants for the further delays that followed.  When Myron died on August 16, 2001, the obligation to close his aborted testimony and proceed with its other evidence remained with the Estate.  But it did nothing, prompting one of the defendants to ask the RTC on November 15, 2001 to strike down Myron’s testimony on the ground of the defendants’ failure to cross-examine him.  The Dela Cruzes themselves asked that the case be dismissed for the Estate’s failure to prosecute after such a long time. 

Still, wanting to give the Estate the chance to present additional evidence, on March 13, 2002 the RTC denied the defendants’ motions.  But the Estate did nothing for about a year and eight months until December 3, 2003 when, rather than present additional evidence, it asked leave to close its case with a formal offer of its documentary exhibits.  Clearly, it was only at this stage that the Estate signaled its intention to still avail itself of Myron’s unfinished testimony.  And the Dela Cruzes did not lose time to act.  On December 5, 2003 they renewed the defendants’ earlier motion to expunge such testimony.  And this time, the RTC granted the motion.  It did so correctly since the Estate showed a lack of interest in offering a substitute testimony for that of Myron’s. 

Since the Estate presented its documentary exhibits and had the same authenticated through Myron’s testimony, it stands to reason that the striking out of the latter’s testimony altogether wiped out the required authentication for those exhibits.  They become inadmissible unless the RTC, in its discretion, reopens the trial upon a valid ground and permits the Estate to rectify its mistakes.

ACCORDINGLY, the Court GRANTS the petition and SETS ASIDE the Court of Appeals’ decision and resolution in CA-G.R. SP 91074 dated July 25, 2008 and January 12, 2009, respectively, and REINSTATES the order of the Regional Trial Court of Antipolo City in Civil Cases 94-3447 and 95-3816 dated March 4, 2005.

SO ORDERED.

ROBERTO A. ABAD 

                                                              Associate Justice

WE CONCUR:

ANTONIO T. CARPIO 

Associate Justice

ANTONIO EDUARDO B. NACHURA      DIOSDADO M. PERALTA

                  Associate Justice                                    Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                      ANTONIO T. CARPIO

                                                   Associate Justice

                                Chairperson, Second Division                  

CERTIFICATION

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                             RENATO C. CORONA

                                                            Chief Justice