A.C. No. 3745 October 2, 1995

CYNTHIA B. ROSACIA, complainant, vs.ATTY. BENJAMIN B. BULALACAO, respondent.

Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly registered corporation, filed a complaint for disbarment dated October 25, 1991, against herein respondent Atty. Benjamin B. Bulalacao. Acting on the complaint, the Court in a resolution dated February 24, 1992, resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Commissioner Victor C. Fernandez, the IBP investigating commissioner, found that respondent breached his oath of office and accordingly recommended respondent's suspension from the practice of law for three (3) months. 1 In a resolution dated July 30, 1994, the IBP Board of Governors resolved to adopt and approve the commissioner's report and recommendation. 2

As found by the IBP, the undisputed facts are as follows:

On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent Atty. Benjamin B. Bulalacao was hired as retained counsel of a corporation by the name of Tacma Phils., Inc.

On October 31, 1990, the lawyer-client relationship between the respondent and Tacma Phils., Inc. was severed as shown by another agreement of even date (Exh. "3-b").

On July, 1991, or after almost nine (9) months from the date respondent's retainer agreement with Tacma, Phils., Inc. was terminated, several employees of the corporation consulted the respondent for the purpose of filing an action for illegal dismissal. Thereafter, he agreed to handle the case for the said employees as against Tacma, Phils., Inc. by filing a complaint before the National Labor Relations Commission, and appearing in their behalf. 3

The sole issue to be addressed is whether or not respondent breached his oath of office for representing the employees of his former client, Tacma, Phils., Inc., after the termination of their attorney-client relationship. We agree with the findings of the IBP that respondent breached his oath of office. Respondent does not now dispute this. In fact, in his motion for reconsideration, respondent admitted that he "did commit an act bordering on grave misconduct, if not outright violation of his attorney's oath". 4 However, respondent is pleading for the Court's compassion and leniency to reduce the IBP recommended three months suspension to either fine or admonition with the following proffered grounds: that he is relatively new in the profession having been admitted to the Philippine Bar on April 10, 1990 at the age of 46 when the complained conduct was committed on August 1991; that he is of humble beginnings and his suspension will deprive his family of its only source of livelihood he being the sole bread winner in the family; that he has fully realized his mistake and the gravity of his offense for which he is fully repentant; that he has severed his attorney-client relationship with the employees of Tacma, Phils., Inc. by inhibiting himself and withdrawing his appearance as counsel in the labor case against Tacma, Phils., Inc.; and that he pledges not to commit the same mistake and to henceforth strictly adhere to the professional standards set forth by the Code of Professional Responsibility.

The Court reiterates that 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 as it is not good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and independent of the former case. 5 It behooves respondent not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double dealing for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. 6 The relation of attorney and client is one of confidence and trust in the highest degree. 7 A lawyer owes fidelity to the cause of his client and he ought to be mindful of the trust and confidence reposed in him. 8 An attorney not only becomes familiar with all the facts connected with his client's cause, but also learns from his client the weak and strong points of the case. No opportunity must be given attorneys to take advantage of the secrets of clients obtained while the confidential relation of attorney and client exists. Otherwise, the legal profession will suffer by the loss of the confidence of the people. 9

Respondent's plea for leniency cannot be granted. We note that respondent is new in the profession as he was just admitted to the Philippine Bar on April 10, 1990, when the breach of his oath of office occurred more than a year after. Having just hurdled the bar examinations which included an examination in legal ethics, surely the precepts of the Code of Professional Responsibility to keep inviolate the client's trust and confidence even after the attorney-client relation is terminated 10 must have been still fresh in his mind. A lawyer starting to establish his stature in the legal profession must start right and dutifully abide by the norms of conduct of the profession. This will ineluctably redound to his benefit and to the upliftment of the legal profession as well.

ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law for three months. Let this resolution be attached to respondent's record in the Office of the Bar Confidant and copies thereof furnished to all courts and to the Integrated Bar of the Philippines.

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

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

 

PANGANIBAN, J.:p

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

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

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

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

The Antecedent Facts

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

The complaint dated September 23, 1991 alleges that complainant met respondent attorney thru complainant's tennis partner, one Sergio Dorado, sometime April 1, 1991. Complainant asked Sergio Dorado to make it possible for complainant to meet respondent at the latter's house regarding the possibility of hiring respondent to handle Civil Case No. 2188-LRC No. 215, pending with the Regional Trial Court of Aklan. A decision favorable to complainant's mother had just been rendered but this decision was appealed by the adverse party to the Court of Appeals, consolidated and docketed as CA-G.R. No. 32592 [1(a) Complaint-Affidavit]. Complainant said respondent is being hired because complainant's mother wanted the appeal expedited.

That very night, "when Atty. Javier offered to collaborate in the appealed case" [1(c) Complainant-Affidavit] because "Atty. Javier through sweet talk and pretense of influence to several justices of the Court of Appeal . . . that he could be of great help in expediting speedy disposition of the case" [1(b) Complaint-Affidavit] complainant gave respondent P10,000,00 which money he intended to buy a refrigerator with. Complainant alleged that he gave the money with the understanding that the money is for "safekeeping and as proof, according to him, . . . promising to return my money should my mother and her lawyer Atty. Ibadlit disagree in his collaborating in the case" [1(c) Complainant-Affidavit — covered by receipt which provides: "Received the amount of Ten Thousand (P10,000.00) Pesos from Mr. Giovani M. Igual as Legal Fees and Filing Fees (Civil Case No. 2188). April 1, 1991 signed by respondent Atty. Rolando S. Javier. [Exhibit A and Annex A to Complaint-Affidavit].

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

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

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

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

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

Complainant testified that he went back on April 3, 1991, to claim back the P10.000.00 given last April 1, 1991. [TSN page 15, July 8, 1992, Giovani Igual]. Respondent also reimbursed the P3,000.00 two (2) months after. [TSN page 19, July 8, 1992].

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

A . . . as collaborating counsel I am going to (sic) prepare the appeal brief and that I required Mr. Giovani Igual to

get the consent of his brothers, sisters and mother. [TSN pages 12-13, September 16, 1992, Atty. Javier].

Respondent further testified that:

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

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

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

Then again:

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

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

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

Question Considering that this is the filing of appellee's brief, is there need to pay filing fee for appellee's brief?

Answer If what you inquired from (sic) is the filing of an appellee's brief, there is no such thing. But if you see, in filing briefs in the appealed cases there are usually motions for reconsideration, supplement of the appellee's brief and If

you look on the Rules of the Court, even the motion for reconsideration is payable. Even a motion for reconsideration on the appealed cases has to be paid. There is fee so I put there the legal fees or the filing fees but that does not necessarily mean that I am referring to a filing fee of an appealed brief. Take note, sir, that in the rule of filing fees even motions for reconsideration or supplement to the [motion for reconsideration there must be a payment of fees. [TSN pages 39-40, September 16, 1992, Cross Examination of Atty. Javier]

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

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

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

A I did not. What I did, your Honor, is to issue a receipt for P10,000.00 as my legal fees and filing fees in a package deal basis with an unwritten agreement that if I will win the case on the appeal on the basis of my appellee's brief in a gentleman's agreement he will give me additional P10,000.00. It is not written. [TSN pages 44 to 45, September 16, 1992, Atty. Javier's cross examination] (emphasis supplied).

Commissioner's Evaluation

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

This would have been a difficult situation had there been no written receipt of payment of fees. In a lawyer-client relationship, what is governing is the written receipt dated April 1, 1991. Respondent was indeed hired on April 1, 1991. Respondent admits he was hired to prepare an appellee's brief because he and his clients immediately quarreled. If that was the situation from the very beginning — that respondent quarrelled with his clients immediately within two days after April 1, 1991 — respondent knew all along he would not get his papers of the case and he knew all al he will not make the appelle's brief.

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

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

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

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

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

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

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

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

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

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

Commissioner Roxas then made the following recommendation, to wit:

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

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

The Court's Ruling

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

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

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

CANON 16 — A lawyer shall hold in trust all moneys properties of his client that may come into his possession

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

CANON 20 — A lawyer shall charge only fair and reasonable fees.

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

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

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

SO ORDERED.

[A.C. No. 4334.  July 7, 2004]

SUSAN CUIZON, complainant, vs. ATTY. RODOLFO MACALINO, respondent.

D E C I S I O N

PER CURIAM:

The saga of a client’s one decade-long travails caused by a recalcitrant lawyer who defrauds his client and flouts the directives of the highest court of the land must deservedly end in tribulation for the lawyer and in victory for the higher ends of justice. The opening verses of the narrative may have been composed by the lawyer, but it is this Court that will have to, as it now does, write finis to this sordid tale, as well as to the lawyer’s prized claim as a member of the Bar.

This administrative case against respondent Atty. Rodolfo Macalino was initiated by a letter-complaint[1] dated October 27, 1994 filed by Susan Cuizon with the Office of the Court Administrator charging the respondent with Grave Misconduct.

The antecedents[2] are as follows:

The legal services of the respondent was sought by the complainant in behalf of her husband Antolin Cuizon who was convicted for Violation of Dangerous Drug Act of 1972. When the spouses had no sufficient means to pay the legal fees, the respondent suggested that he be given possession of complainant’s Mistubishi car, which was delivered to the respondent. Later respondent offered to buy the car for Eighty Five Thousand Pesos (P85,000.00) for which he paid a down payment of Twenty Four Thousand Pesos (P24,000.00). After the sale of the car, respondent failed to attend to the case of Antolin Cuizon, so complainant was forced to engage the services of another lawyer.

The respondent was required to comment on the complaint lodged against him as early as December 5, 1994.

On December 29, 1995 the respondent was ordered to show cause why he should not be meted with disciplinary action or declared in contempt for failure to comply with the order of the court, to comment on complaint.

On June 17, 1996, for failure to comply with the previous orders of the court, a fine of Five Hundred Pesos (P500.00) was imposed upon him and the order requiring him to file his comment on the complaint was reiterated.

On July 24, 1996 respondent paid the Five Hundred Pesos (P500.00) fine imposed on him, however he failed to fully comply with the order of the court.

On December 5, 1996 the Supreme Court received a letter from Antolin Cuizon informing the court that the respondent again committed another infraction of the law by issuing a check against a closed account.

On February 12, 1997 the Supreme Court issued a resolution increasing the imposed fine on respondent in the amount of Five Hundred Pesos (P500.00) to One Thousand Pesos (P1,000.00) and again the order requiring the respondent to file his comment was reiterated.

On Noveber 13, 1997 the cashier of the Disbursement and Collection Division issued a certification that the imposed fine of One Thousand Pesos (P1,000.00) has not been paid by the respondent.

On December 10, 1997 the Supreme Court issued a warrant of arrest directing the National Bureau of Investigation to detain the respondent until further Orders from the Court.

On February 23, 1998, Allen M. Mendoza Intelligence Agent of the NBI of San Fernando, Pampanga rendered a Report and Return of the Service of Warrant of Arrest to the effect that the warrant could not be served for reason that the subject is no longer residing at his given address.

On April 22, 1998 the court again issued another resolution requesting the complainants to furnish the court with the correct and present address of the respondent.

In compliance with this directive, the complainant reported that the respondent had not changed his residence. In fact, upon the information given by his own son, the respondent comes home at midnight and leaves at dawn.[3]

In the Resolution[4] dated July 27, 1998, the Court resolved to consider the Resolution of December 10, 1997 finding the respondent guilty of contempt of court and ordering his imprisonment until he complies with the Resolution of February 12, 1997, requiring him to pay a fine of P1,000.00 and to submit his comment on the instant administrative complaint served on the respondent by substituted service. The Court likewise declared the respondent to have waived his right to file his comment on the administrative complaint and referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The Investigating Commissioner forthwith filed her Report and Recommendation[5] dated October 27, 1998 finding the respondent unfit to remain a member of the Bar and recommending that he be disbarred. The IBP adopted the Report and Recommendation with the modification that the respondent instead be suspended from the practice of law for three (3) years.[6]

In its Resolution[7] dated July 19, 2000, the Court resolved to return the case to the IBP which, in turn, remanded the case to the Investigating Commissioner for further investigation and compliance with procedural due process.[8]

As directed, the Investigating Commissioner conducted further investigation and submitted her Report and Recommendation[9] dated November 16, 1999 stating that the respondent failed to appear during the scheduled hearings on January 5, 1999 and March 23, 1999. Moreover, despite his counsel’s motion for extension of time within which to file a comment on the complaint having been granted, the respondent failed to file his comment. Hence, the Investigating Commissioner reiterated her recommendation that the respondent be disbarred.

The IBP modified the Investigating Commissioner’s recommendation and urged instead that the respondent be suspended from the practice of law for five (5) years. [10] The Court noted the recommendation in its Resolution[11] dated September 8, 2003.

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.  However, 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.  He must serve his client with competence and diligence, and champion the latter’s cause with whole-hearted fidelity. [12] 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.[13]

In the instant case, after agreeing to represent the complainant’s husband, taking possession of their car and persuading the complainant to sell the same to him for a nominal amount, the respondent refused to carry out his duties as counsel prompting the complainant to secure the services of another lawyer to defend her husband.  The respondent clearly breached his obligation under Rule 18.03, Canon 18 of the Code of Professional Responsibility 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 infraction is compounded by the fact that he issued a check in favor of the complainant’s husband which was later dishonored for having been drawn against a closed account. [14] Such conduct indicates the respondent’s unfitness for the trust and confidence reposed on him, shows such lack of personal honesty and good moral character as to render him unworthy of public confidence and constitutes a ground for disciplinary action.[15]

The fact that the respondent went into hiding in order to avoid service upon him of the warrant of arrest issued by the Court exacerbates his offense.  His repeated failure to comply with the Court’s Resolutions requiring him to file his comment on the complaint should also be taken into account.  By his repeated cavalier conduct, the respondent exhibited an unpardonable lack of respect for the authority of the Court.[16]

As an officer of the court, it is a lawyer’s duty to uphold the dignity and authority of the court.  The highest form of respect for judicial authority is shown by a lawyer’s obedience to court orders and processes.[17] A lawyer who willfully disobeys a court order requiring him to do something may not only be cited and punished for contempt but may also be disciplined as an officer of the court.[18]

Section 27, Rule 138 of the Rules of Court provides that:

A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so.  The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

The foregoing acts of the respondent constitute gross misconduct which renders him unfit to discharge the duties of his office and unworthy of the trust and confidence reposed on him as an officer of the court.[19] His disbarment is consequently warranted.[20]

WHEREFORE, respondent Rodolfo Macalino is hereby DISBARRED. Let a copy of this decision be attached to the respondent’s personal records and furnished the Integrated Bar of the Philippines and all courts in the country.

SO ORDERED.

[A.C. No. 3455.  April 14, 1998]

ARSENIO A. VILLAFUERTE, complainant, vs. ATTY. DANTE H. CORTEZ,respondent.

R E S O L U T I O N

VITUG, J.:

Feeling aggrieved by what he perceives to be a neglect in the handling of his cases by respondent lawyer, despite the latter's receipt of P1,750.00 acceptance and retainer fees, complainant Arsenio A. Villafuerte seeks, in the instant proceedings, the disbarment of Atty. Dante H. Cortez.

From the records of the case and the Report submitted by the Commission on Bar Discipline ("CBD") of the Integrated Bar of the Philippines ("IBP"), it would appear that sometime in January 1987, complainant, upon the referral of Atty. Rene A. V. Saguisag, went to the office of respondent lawyer to discuss his case for "reconveyance" (Civil Case No. 83-18877).  During their initial meeting, complainant tried to reconstruct before respondent lawyer the incidents of the case merely from memory prompting the latter to ask complainant to instead return at another time with the records of the case.  On 30 January 1987, complainant again saw respondent but still sans the records.  Complainant requested respondent to accept the case, paying to the latter the sum of P1,750.00 representing the acceptance fee of P1,500.00 and P250.00 retainer fee for January 1987.  Respondent averred that he accepted the money with much reluctance and only upon the condition that complainant would get the records of the case from, as well as secure the withdrawal of appearance of, Atty. Jose Dizon, the former counsel of complainant.  Allegedly, complainant never showed up thereafter until November 1989 when he went to the office of respondent lawyer but only to leave a copy of a writ of execution in Civil Case No. 062160-CV, a case for ejectment, which, according to respondent, was never priorly mentioned to him by complainant.  Indeed, said respondent, he had never entered his appearance in the aforenumbered case. 

In its report, IBP-CBD concluded that the facts established would just the same indicate sufficiently a case of neglect of duty on the part of respondent.  The CBD rejected the excuse proffered by respondent that the non-receipt of the records of the case justified his failure to represent complainant.   The IBP-CBD, through Commissioner Julio C. Elamparo, recommended to the IBP Board of Governors the suspension of respondent from the practice of law for three months with a warning that a repetition of similar acts could be dealt with more severely than a mere 3-month suspension.

On 30 August 1996, the IBP Board of Governors passed Resolution No. XII-96-191 which -

"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, hereinmade part of this Resolution/Decision as Annex `A;' and, finding the recommendation therein to be fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Dante Cortez is hereby SUSPENDED from the practice of law for three (3) months with a warning that a repetition of the acts/omission complained of will be dealt with more severely."[1]

Both respondent lawyer and complainant filed with the IBP-CBD their respective motions for the reconsideration of the foregoing resolution.

On 23 August 1997, the Board of Governors passed Resolution No. XII-97-66 that -

"RESOLVED to CONFIRM Resolution NO. XII-96-191 of the Board of Governors Meeting dated August 30, 1996 SUSPENDING Atty. Dante Cortez from the practice of law for three (3) months with a warning that repetition of the acts/omission complained of will be dealt with more severely."[2]

The Court agrees with the IBP-CBD in its findings and conclusion that respondent lawyer has somehow been remiss in his responsibilities.

The Court is convinced that a lawyer-client relationship, given the circumstances, has arisen between respondent and complainant.  Respondent lawyer has admitted having received the amount of P1,750.00, including its nature and purpose, from complainant.  His acceptance of the payment effectively bars him from altogether disclaiming the existence of an attorney-client relationship between them.  It would not matter really whether the money has been intended to pertain only to Civil Case No. 83-18877 or to include Civil Case No. 062160-CV, there being no showing, in any event, that respondent lawyer has attended to either of said cases.  It would seem that he hardly has exerted any effort to find out what might have happened to his client's cases.  A lawyer's fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him.[3] He is mandated to exert his best efforts to protect, within the bounds of the law, the interests of his client.  The Code of Professional Responsibility cannot be any clearer in its dictum than when it has stated that a "lawyer shall serve his client with competence and diligence," [4] decreeing further that he "shall not neglect a legal matter entrusted to him."[5]

Complainant, nevertheless, is not entirely without fault himself.  He cannot expect his case to be properly and intelligently handled without listening to his own counsel and extending full cooperation to him.  It is not right for complainant to wait for almost two years and to deal with his lawyer only after receiving an adverse decision. 

All considered, the Court deems it proper to reduce the recommended period of suspension of the IBP from three months to one month.

WHEREFORE, Atty. Dante H. Cortez is hereby SUSPENDED from the practice of law for a period of one month from notice hereof, with a warning that a repetition of similar acts and other administrative lapses will be dealt with more severely than presently.

Let a copy of this Resolution be made a part of the personal records of respondent lawyer in the Office of the Bar Confidant, Supreme Court of the Philippines, and let copies thereof be furnished to the Integrated Bar of the Philippines and be circulated to all courts.

SO ORDERED.

G.R. No. 106153 July 14, 1997

FLORENCIO G. BERNARDO, petitioner, vs.THE HON. SPECIAL SIXTH DIVISION OF THE COURT OF APPEALS and JIMMY TOMAS, respondents.

 

PANGANIBAN, J.:

Did the trial court deny due process to the petitioner by its refusal to grant new trial and/or to reopen the case in spite of the fact that the defendant was unable to participate and to present his evidence due to the death of the handling lawyer of the law firm representing him and the failure of the new attorney to follow the rules on substitution of counsel?

In its original decision, 1 the Court of Appeals 2 answered the foregoing question in the affirmative and ordered the trial court to reopen the proceedings to enable the petitioner to present his evidence. Upon reconsideration, however, said Court3 reversed itself and affirmed the regional trial court's ruling that petitioner's failure to present his side was due to his own fault or negligence. Undaunted, petitioner filed before this Court the present petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court praying for the nullification of the Amended Decision 4 of the Respondent Court of Appeals promulgated on

March 5, 1992 and its Resolution 5 denying petitioner's motion for reconsideration, promulgated on July 3, 1992.

The dispositive portion of the challenged Amended Decision reads:

Contsrued in the light of the above rule, We find the Motion for Reconsideration well taken and grant the same. The decision dated December 27, 1991 is hereby withdrawn and set aside and the decision of the trial court is AFFIRMED.

Originally handled by this Court's First Division, the case was transferred to the Third Division by a Resolution (of the First Division) dated November 23, 1995. After due deliberation on the various submissions of the parties, the Court assigned the undersigned ponente to write the Court's Decision.

The Facts

On November 17, 1988, Private Respondent Jimmy Tomas filed before the Regional Trial Court of Kalookan City, Branch City, Branch 127, 6 a complaint 7 for recovery of possession, quieting of title and damages with preliminary mandatory injunction against Petitioner Florencio Bernardo, the National Housing Authority (NHA), Raymundo Dizon, Jr. and Jose Vasquez in their official capacities as general manager and project manager, respectively, of NHA. The first pleading filed by therein Defendant Bernardo was an ex parte motion 8 for extension of time to file an answer signed by "Atty. Jose B. Puerto" as counsel. When the answer 9 was submitted later, his counsel became "Puerto Nuñez & Associates," but with the same "Jose B. Puerto" signing. Thereafter, all pleadings on behalf of Bernardo during the pre-trial were filed by said law firm, and the other parties furnished him with their own pleadings through the same firm.

It appears that the lot subject of the complaint was the object of a double sale by the NHA to Plaintiff Tomas and to Defendant Bernardo. The parties failed to reach an amicable settlement during the pre-trial. Thus, on November 6, 1990, the trial judge issued an order terminating pre-trial and scheduling initial trial on the merits on December 5, 1990. Counsel for plaintiff, however, requested for a resetting since the plaintiff was going out of the country and would be back only at the end of the year. This was granted and the hearing was reset to January 9, 1991. Later, the court realized that said date fell on a Wednesday, a day reserved for criminal cases. The hearing was thus reset anew to February 5, 1991. On this date, plaintiff's and NHA's respective counsels appeared. However, neither Defendant Bernardo nor his counsel 10 came despite due notice. During the proceedings, the court interpreter informed the judge that an "associate of Atty. Puerto" allegedly called to say that Atty. Puerto haddied. 11 Pending official and verified notification of such death, the court decided to proceed with reception of evidence from the plaintiff. It was only on June 7, 1991, after Plaintiff Tomas and the NHA concluded the presentation of their respective evidence, that Atty. Marcelo J. Abibas, Jr. filed a notice of appearance 12 as new counsel for Bernardo, mentioning therein the death of Atty. Puerto.

Without acting on the notice filed by Bernardo's new counsel and without receiving evidence from Defendant Bernardo, the trial court promulgated its decision 13 on June 11, 1991. The dispositive portion of said decision reads:

WHEREFORE, in view of all the foregoing considerations, judgment is hereby rendered in favor of plaintiff:

a) Declaring the Lot 3, Block 6, Phase III-C of the Development Project at Dagat-Dagatan, Kalookan City, was validly awarded and sold by defendant NHA to plaintiff Jimmy Tomas and, therefore, the latter is entitled to the ownership and possession thereof, and to this end defendant NHA is ordered to execute such other documents, as may be necessary in order to transfer full ownership and possession thereof to said plaintiff;

b) Ordering defendant Florencio Bernardo to remove and to demolish the house he erected on said lot and thereafter deliver unto said plaintiff the peaceful possession of the same lot;

c) Ordering defendant Florencio Bernardo to pay plaintiff the amounts of P100,000.00 actual damages, P200,000.00 as moral damages, P200,000.00 as exemplary damages, P30,000.00 as attorney's fees plus P500.00 per appearance, as well as the costs of suit;

d) Dismissing defendant Bernardo's counterclaim and cross-claim for lack of merit/substantiation; and

e) Ordering defendant NHA to refund under proper receipt to defendant Florencio Bernardo the sum of P615,000.00 which the latter paid to and was accepted by the former. 14

Bernardo, through his new counsel, filed a nine-page Omnibus Motion 15 seeking (1) reconsideration of the above decision, (2) reopening of the case and (3) a new trial on the grounds that he had been denied his substantive right to due process, particularly the right to be heard, and that said decision was contrary to law. In an Order 16 dated August 7, 1991, the trial judge denied the motion, reasoning thus:

The foregoing indeed illustrated a clear instance of a grossly negligent party shifting the blame from his own self to the court. We say "grossly negligent" because there was absolutely no justification for a client not to get in touch with his lawyer, much less to be ignorant or unaware of the latter's death. And in the same manner that it is the duty of the lawyer to inform the court of the death of his client who is a party in a pending litigation, so is a client-party obligated to inform the court of the death of his lawyer.

xxx xxx xxx

Furthermore, new counsel knew or must have known that the raw information as to the death of Atty. Puerto was not even a verified information because when he entered his appearance on June 2, 1991 all he could say was that Atty. Puerto died recently. It was only on June 25, 1991 or after the lapse of almost five (5) months when he was able to produce a death certificate evidencing death of Atty. Puerto on January 28, 1991.

Furthermore, since it was the law firm of PUERTO, NUÑEZ & ASSOCIATES who represented defendant Florencio Bernardo in this case, it behooved any partner or employee therein to inform this Court that Atty. Puerto of said law firm who was handling this case was already deadand that nobody in the same law firm was taking over from said Atty. Puerto. . . .

xxx xxx xxx

In any event, there was no meritorious defense by defendant Florencio Bernardo to speak of in this case. . . .

The truth of the matter is that defendant Florencio Bernardo had been forewarned that the acceptance of his money totaling P615,600.00 on April 14, 1988 by the Project Office through the Project Manager, did not constitute a valid award to him of subject lot. He know (sic) or must have known that all the actuations of the Project Manager were subject to the approval of the General Manager of defendant NHA. Furthermore, defendant Bernardo knew or must have known that under Memorandum Circular No. 528 dated 29 October 1987 (or very much prior to Bernardo's payment of P615,600.00 on April 14, 1988), Project Officers were ordered to cease-desist from accepting payments/deposits from applicants of commercial/industrial lots until after approval of final award has been issued by NHA (Exh. "E").

When defendant Bernardo, therefore, did not await the approval by the NHA of his payment of P615,600.00 through the issuance of a final award to him, said defendant took a risk the consequences of which he alone must suffer. Since the award to plaintiff was to one approved by defendant NHA, as in fact the agreement to sell subject lot

was executed in his favor, there was no valid defense whatsoever which defendant Bernardo could raise against plaintiff. . . . 17

On September 4, 1991, Bernardo filed his notice 18 of appeal. However, the appeal was denied due course by the trial court upon opposition by Tomas' counsel on the ground that it was filed beyond the reglementary period to appeal. Hence, on September 24, 1991, Bernardo filed before the Court of Appeals a petition for certiorari, mandamus, prohibition with injunction anda special prayer for the issuance of a temporary restraining order. 19 A supplement 20 thereto dated October 8, 1991 was filed through his collaborating counsel — Gonzales, Batiller, Bilog & Associates. On December 27, 1991, the Court of Appeal (Sixth Division) promulgated a Decision 21 in favor of Petitioner Bernardo, ordering the trial judge to set the case "for hearing for the reception of petitioner's evidence after which a decision be rendered based on the evidence and applicable law." The appellate court reasoned thus:

The steps for the substitution of counsel are clear in the Rules. But these rules are not inflexible when a strict adherence thereto would result in injustice, and a decision which gives premium on technicalities. It is therefore our opinion that as of June 7, 1991, Atty. Marcelo J. Abibas, Jr. became the petitioner's new counsel. This being so, copy of the decision should have been sent to him. Since this was not complied with, and without being technical about it, his receipt on June 24, 1991 of the decision is considered as the date from which the reglementary 15-day period to appeal should commence to run. Thus, when petitioner filed his Omnibus Motion on June 25, 1991, this was well within the 15-day period. And when the motion was denied on August 7, 1991 and received by petitioner on August 23, 1991, there were fourteen more days left for petitioner within which to perfect his appeal. When he filed his Notice of Appeal on September 4, 1991, it was only the 13th day of the appeal period. 22

Respondent Tomas moved for the reconsideration of the above Decision. After Petitioner Bernardo filed his opposition thereto, the Respondent Court, this time through a Special Sixth Division, 23 reversed its original decision and affirmed the trial court's judgment. It justified its change of mind this wise:

In resolving this Motion for Reconsideration, we feel constrained to consider as crucial the failure of a party to comply with the rules on substitution of counsel. When a party is represented by counsel of record, service of orders and notices must be made upon the said attorney and notice to the client and to any other lawyer, not the counsel of record, is not notice in law. (See Chainani vs. Tancinco, 90 Phil. 862). In order that there may be substitution of attorneys in a given case, there must be (1) written application for substitution; (2) a written consent of the client; (3) a written consent of the attorney to be substituted; and (4) in case such written consent cannot be procured, there must be filed with the application for substitution proof of the service of notice of such motion in a manner required by the rules on the attorney to be substituted. (Cortez vs. Court of Appeals, L-32547, May 9, 1978; 83 SCRA 316; Sumadchat vs. Court of Appeals, 111 SCRA 488). Where the procedure for substitution of attorney is not followed, the attorney who appears on record before the filing of the application for substitution should be regarded as the attorney entitled to be served with all the notices and pleadings, and the client is answerable for the shortcomings of his counsel on record. (See Ramos vs. Potenciano, 118 Phil. 1435). The filing of notice of appearance by a new counsel does not amount to official substitution of counsel of record. The courts may not presume that the counsel of record had already been substituted by new counsel merely from the filing of formal appearance by the latter (Sumadchat vs. Court of Appeals, L-58197; January 30, 1982; 111 SCRA 488). 24

Bernardo's motion for reconsideration of the above Amended Decision was denied via a Resolution 25 promulgated on July 3, 1992. Not satisfied with the said Amended Decision and Resolution, petitioner filed the present petition to this Court.

Issue

The petitioner raises a single issue:

Respondent Court committed grave abuse of discretion amounting to lack of or in excess of jurisdiction when it initially granted the petition based on legal and equitable grounds in favor of petitioner as contained in its decision dated 27 December 1991 but thereafter reversed itself by withdrawing and setting aside said decision and in lieu thereof enter another one reversing it entirely and consequently affirming the questioned decision, orders and writ issued by respondent judge and the notice to vacate issued by respondent sheriff and such error was further compounded when respondent court denied the motion for reconsideration filed by petitioner despite sufficient factual, legal and equitable grounds of record that justify the grant of the petition as explained in its decision dated 27 December 1991 and as argued by petitioner in his pleadings/comments. 26 (Emphasis in the original)

Preliminarily, this Court clarifies that although petitioner refers to a "respondent judge" and a "respondent sheriff" in his petition, said "respondents" were not, however, impleaded as parties in the instant petition. It is, therefore, an error on the part of the petitioner to attack either of these judicial officers because he filed this petition against only "The Hon. Special Sixth Division of the Court of Appeals and Jimmy Tomas" as respondents.

In support of his petition, Bernardo argues that although "a court of justice is entitled to correct itself," it is grave abuse of discretion to do so "in a case where it would do away unceremoniously with the most cherished Constitutional right of petitioner to due process of law," or "when technicality would desert its objective of giving the parties the chance to present their side of the issue." 27 Petitioner also claims that Respondent Tomas merely prayed that Respondent Court's original decision be modified such that a new trial would be denied the petitioner and only his appeal would be given due course. However, Respondent Court went beyond such reliefs prayed for, and instead reversed entirely its original decision. Petitioner contends that, in effect, Respondent Court of Appeals sanctioned the illegal proceedings in the trial court which had failed to accord him his substantive right to due process.

In brief, petitioner maintains that the Court of Appeals (and the trial court) committed grave abuse of discretion in depriving him of due process by failing to reopen the trial proceedings to enable him to present evidence to support his defenses, counterclaim and cross-claim.

The Court's Ruling

The petition is not meritorious, except as to the award of damages.

Preliminary Issue: Rule 65 or Rule 45?

At the outset, this Court notes that the proper remedy of Petitioner Bernardo should have been an appeal under Rule 45 of the Rules of Court. We have time and again reminded members of the bench and bar that a special civil action for certiorari under Rule 65 lies only when "there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law." 28 Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, 29 certiorari not being a substitute for lost appeal. 30 The remedies of appeal and certiorariare mutually exclusive and not alternative or successive. 31 For this procedural lapse, the petition should thus be denied outright. Moreover, there are even more cogent reasons for denying the petition on the merits.

Main Issue: No Denial of Due Process

Under Section 26, Rule 138 of the Rules of Court and established jurisprudence, a valid substitution of counsel has the following requirements: (1) the filing of a written application for substitution; (2) the client's written consent; (3) the consent of the substituted lawyer if such consent can be obtained; and, in case such written consent cannot be procured, (4) a proof of service of notice of such motion on the attorney to be substituted in the manner required by the Rules. 32 Where death of the previous attorney is the cause of substitution of the counsel, a verified proof of the death of such attorney (usually a death certificate) must accompany the notice of appearance of the new counsel.

Clearly, petitioner failed to comply with the above requirements. His new counsel's notice of appearance 33 merely mentioned that Atty. Jose B. Puerto "recently died." A verified certificate of death was

not attached thereto. It has been held that courts may not presume that the counsel of record has been substituted by a second counsel merely from the filing of a formal appearance by the latter. 34

In any event, mere mention of the death of Atty. Puerto was of no moment for it was the law firm of Puerto Nuñez & Associates, — not merely Atty. Jose Puerto — which was the legal representative of petitioner. The death of said attorney did not extinguish the lawyer-client relationship between the firm and Bernardo. 35

This Court is not unmindful of the belated attestation 36 of the former secretary 37 of said law office that the other partner, Dr. Constantino Nuñez, allegedly died even before 1986; that two associates 38 ceased to be connected with the firm since 1989; while a third associate, Atty. Jose Acejas predeceased Atty. Puerto in March 1990, thereby leaving Atty. Puerto as the only lawyer in the office. But, obviously, it was petitioner's former counsel who misled the trial court into believing that "Puerto Nuñez and Associates," a law firm consisting of more than one lawyer, continued to legally represent Bernardo. Courts may presume that a law firm that represented itself as such, with at least two name partners and more than one associate is composed of at least three lawyers. 39 It is not the duty of the courts to inquire during the progress of a case whether the partnership continues to exist lawfully, or the partners are still alive or its associates are still connected with the firm.

Jurisprudence teems with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel. Only when the counsel's actuations are gross or palpable, resulting in serious injustice to the client, that the courts should accord relief to the party. 40 A thorough review of the instant case reveals that the negligence of the law firm engaged by the petitioner to defend his cause, and the error of his new counsel in giving a defective substitution and notice of the death of his former counsel, did not result in deprivation of due process to said party. Hence, a nullification of the Respondent Court's Amended Decision grounded on grave abuse of discretion is not warranted.

It should be stressed the petitioner was able to file his motion for reconsideration in which he presented his legal defenses with respect to the main subject of the original complaint. 41 His arguments were substantially discussed and debunked by the trial court in its order disposing of said motion. 42 Such motion for reconsideration cured whatever defect there may have been, if any, as regards the alleged denial of due process. 43 It is a time-honored ruling that lack of opportunity to be heard, and not necessarily absence of prior notice, constitutes violation of due process. 44

Worth mentioning is the fact that petitioner was likewise not entirely blameless in his alleged deprivation of his day in court. In a recent case, 45 this Court enunciated:

Litigants, represented by counsel, should not expect that all they need to do is sit back, relax and await the outcome of their case. They should give the necessary assistance to their counsel for what is at stake is their interest in the case. 46

In his concurring opinion in Republic vs. Sandiganbayan, 47 Mr. Justice Teodoro R. Padilla emphasized the value and significance of the party's presence and diligence in the advancement of his cause, thus:

. . . An almost lifetime of experience in litigation is the best witness to the indispensability of party's presence (aside from his lawyer, in case he has the assistance of counsel) in order to litigate with any reasonable opportunity of success. . . . especially during the cross-examination of adverse party's witnesses — where the truth must be determined — every counsel worth his salt must have the assistance and presence of his client on the spot, for the client invariably knows the facts far better than his counsel. In short, even in civil cases, the presence of party (as distinguished from his lawyer alone) is essential to due process. 48

True enough, the party-litigant should not rely totally on his counsel to litigate his case even if the latter expressly assures that the former's presence in court will no longer be needed. No prudent party will leave the fate of his case entirely to his lawyer. Absence in one or two hearings may be negligible but want of inquiry or update on the status of his case for several months (four, in this case) is inexcusable. It is the duty of a party-litigant to be in contact with his counsel from time to time in order to be informed of the progress of his case. 49 Petitioner simply claims that he was busy with his gravel and sand and trading businesses which involved frequent traveling from Manila to outlying provinces. But this was not a justifiable excuse for him to fail to ask about the developments in his case or to ask somebody to make the query for him. Petitioner failed to act with prudence and diligence; hence, his plea that he was not accorded the right to due process cannot elicit this Court's approval or even sympathy. 50

Notwithstanding the above discussed negligence or failure of private respondent, we note that he was not left without any relief. The trial court's decision affirmed by the Respondent Court required the NHA to refund the amounts he had remitted for the erroneous award of the lot to him. This relief we find fair and equitable.

Damages

The award by the trial court, affirmed by Respondent Court, of actual, moral and exemplary damages to Private Respondent Tomas in the sums of P100,000.00, P200,000.00 and P200,000.00, respectively, is however erroneous.

Basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or best evidenceobtainable. 51

Private Respondent Tomas' claim for actual damages was only premised upon his testimony as follows:

Q What is the basis of your actual damages that you suffered in this proceeding?

A The basis of the actual damages that I suffered was that I was deprived of my business and also my relation with my friends and counterparts in the business has been cancelled in making the assembly plant of water pumps, sir. 52

No other evidence was proffered to substantiate his bare statements. How the amount of P100,000.00 was arrived at was never shown; thus, said amount remains a pure speculation. 53 Private respondent's self-serving testimonial evidence, if it may be called such, is definitely insufficient to support an award of compensatory damages.

Neither did private respondent establish the legal basis for his claimed moral damages. Although such damages are incapable of exact estimation and do not necessitate proof of pecuniary loss for them to be awarded — the amount of indemnity being left to the discretion of the court — it is still essential to prove that: (1) injury must have been suffered by the claimant and (2) such injury must have sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. 54 It is not enough that one merely says he suffered mental anguish, serious anxiety, social humiliation, wounded feelings and the like as a result of the actuations of the other party. 55 Invariably, such actions must be shown to have been willfully done in bad faith or with ill motive. 56 Bad faith or ill motive under the law cannot be presumed but must be established with clear and convincing evidence. 57

This Court finds the grant of actual and moral damages to be untenable and substantially devoid of legal basis. Private respondent not being entitled to these damages, an award of exemplary damages is likewise baseless. 58Finally, where the award of moral and exemplary damages is eliminated, so must the award for attorney's fees be deleted.59 Private respondent has not shown entitlement thereto pursuant to the Civil Code. 60 As petitioner was not able to present contradictory evidence, private respondent's ex parte claims for damages must be carefully reviewed and any doubt should be resolved against the latter.

WHEREFORE, premises considered, the assailed Amended Decision of Respondent Court of Appeals promulgated on March 5, 1992 and its Resolution of July 3, 1992 affirming the decision of the Regional Trial Court of Kalookan City, Branch 127, in Civil Case No. C-13614, are hereby AFFIRMED with the MODIFICATION that the trial court's award of actual, moral and exemplary damages and attorney's fees is DELETED.

SO ORDERED.