Buted v. Hernando AC 1359

FACTS: Atty. Hernando was counsel for Luciana Abadilla and Angela Buted for a partition case of the late Teofilo Buted’s lot. He successfully defended the case. When Luciana died, Hernando withdrew appearance. Luciana once sold the property to Benito Bolisay but it appears that the TCT was issued to the Sy couple. Upon filing specific performance, Bolisay got Atty. Hernando to represent him (free of charge). They succeeded in ejecting the couple. Atty. Hernando claims to have terminated relationship with Bolisay. In February 1974, Atty. Hernando filed a petition, in behalf of Luciana’s heirs without their consent, to cancel TCT of Bolisay couple over the lot. The couple filed disapproval. The case was dismissed for prescription. In August of 1974, Bolisay couple filed an administrative complaint against Atty. Hernando for having abused personal secrets obtained by him as their counsel

ISSUE: Whether or not respondent Hernando had a conflict of interests

HELD: Yes. The Supreme Court ruled that Atty. Hernando had a conflict of interest. In the action for specific performance, Atty Hernando defended the Bolisay couple’s right to ownership but assailed the very same right in the cadastral proceeding in favor of Luciana’s heirs. The Canons of Professional Ethics prohibits conflicting interests for lawyers. “It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidence forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”And despite Atty Hernando’s claim that he had never seen nor taken hold of the Transfer Certificate of Title or that he divulged any confidential information belonging to the Bolisay couple, that the mere fact that respondent had acted as counsel for Benito Bolisay in the action for specific performance should have precluded him from appearing as counsel for the other side in in the cancellation of the Transfer Certificate of Title of the spouses. There is no necessity for proving the actual transmission of confidential information to an attorney in the course of his employment by his first client in order that he may be precluded from accepting employment by the second or subsequent client where there are conflicting interests between the first and the subsequent clients. The prohibition on conflict of interest was designed not only to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice. Although the relation of attorney and client has terminated, and the new employment is in a different case; nor can the attorney use against his former client any knowledge or information gained through their former connection.

SUSPENDED for 5 months.

Villanueva v Sta.Ana Case. No .251

FACTS: Villanueva first met Atty. Sta. Ana for the purpose of notarizing documents. Villanueva is to borrow some amount from a bank or lending institution. Atty. Sta.Ana offered that she could facilitate the loan if Villanueva would put up a land collateral and a guaranty deposit of P150,000. Villanueva then agreed and gave Atty. Sta.Ana P144,000 plus the corresponding documents. After a while, Atty. Sta.Ana asked for additional P109,000 for withholding and documentary stamp taxes and surcharges. Villanueva decided to forego the loan and demanded her money to be returned. Atty. Sta. Ana failed to do so and avoided Villanueva. Villanueva then sought help from the Vice President who referred the same to the NBI. NBI recommended charging of estafa and transmitted such information to the IBP. Upon summon to IBP’s hearings, Atty. Sta. Ana never appeared. She was recommended to be disbarred.

ISSUE: Whether or not Atty. Sta. Ana’s actions warrant disbarment

HELD: The Supreme Court upheld IBP’s recommendation. Good moral character is not only a condition precedent to an admission to the legal profession but it must also remain extant in order to maintain one's good standing. The Code of Professional Responsibility mandates: CANON 1 — . . . . Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 16 — A lawyer shall hold in trust all moneys and properties of his client that may come into his possession. Rule 16.01 — A lawyer shall account for all money or property collected or received for or from the client.

Despite all the opportunities accorded to her, Atty. Sta.Ana failed to present her defense and to refute the charges or, at the very least, to explain herself.

DISBARRED.

Maturan v. Gonzales AC 2597

FACTS: Maturan was instituted as an attorney in fact through an SPA by his mother and father (Casquejo couple) in law to file ejectment cases and criminal cases against illegal settles occupying a certain lot. Atty. Gonzales prepared and notarized the SPA. Maturan engaged Gonzles as counsel for the ejectment cases. While said lot was registered in the name of Celestino Yokingco, Antonio Casquejo had, however, instituted a case for reconveyance of property and declaration of nullity against the former. Gonzales filed Forcible Entry and Damages against several individuals and judgment was rendered in their favor. A writ of execution was issued. On the case filed by Casquejo, they entered into a judicially-approved compromise agreement. While the writ of execution was pending and without withdrawing as counsel for Matura, Atty. Gonzales filed in behalf of Yokingco, an action to annul the judgment rendered in the previous case due to lack of authority on the part of Maturan to represent Antonio and Gloria Casquejo. Maturan then filed an administrative complaint against the Gonzales for immoral, unethical, and anomalous acts and asked for his disbarment. Gonzales denied the allegations and contended he was of the belief that filing a motion for issuance of a writ of execution was the last and final act in the lawyer-client relationship between himself and Maturan, and that his formal withdrawal as counsel for the Casquejos was unnecessary in order to sever the lawyer-client relationship between them. Furthermore, he alleged that his acceptance of employment from Yokingco was for him, an opportunity to honestly earn a little more for his children’s sustenance. IBP recommended suspension of 1 year.

ISSUE: Whether or not Gonzales is guilty of representing conflicting interests

HELD: Yes. The Supreme Court found Gonzales guilty of representing conflicting interests. It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in a related suit, as a lawyer is prohibited from representing conflicting interests or discharging inconsistent duties. The representation of conflicting interest is in good faith and with honest intention on the part of the lawyer does not make the prohibition inoperative. What Gonzales did was violative of Canon 6 of the Canons of Professional Ethics which provide in part: “It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

A lawyer-client relationship is not terminated by the filing of a motion for a writ of execution. His acceptance of a case implies that he will prosecute the case to its conclusion. He may not be permitted to unilaterally terminate the same to the prejudice of his client.

SUSPENDED for 2 years (modified IBP recommendation)

Vill Transport Service v CA GR 76232

FACTS: Vill Transport was held liable for damages for breach of contract in favor of the Energy Corporation. Vill Transport was ordered to pay Energy Corporation P191,435.62 as damages, P40,000 for charter fees, P33,931.65 for rental and maintenance costs and P63,750 for service fees, with all of these amounts being subject to 12% interest per annum from June 16, 1980, plus attorney's fees of P8,866.60. On June 7, 1985 a copy of the decision was mailed to Atty. Amante Pimentel, counsel for Vill Transport, at 563 Tanglaw Street, Mandaluyong, Metro Manila. But such was returned as the addressee moved out of his given address without leaving a forwarding address. Energy Corporation moved for execution of the decision and the court soon issued the writ. Vill Transport then filed a motion for reconsideration of the order and served notice of its intention to appeal. It contended that the decision had not as yet become final because it came to know of the decision only on October 21, 1985. It also claimed that the writ of execution was void as no copy of the motion for execution was served on it. Energy Corporation filed an opposition. Without the resolution for the motion for reconsideration, Vill Transport filed a motion for new trial based on newly-discovered evidence. Again, without waiting for the resolution of said motion, it filed with the Court of Appeals a petition for certiorari and mandamus with preliminary injunction aimed at the setting aside of the order of execution and the issuance of an order for a new trial. Court of Appeals dismissed the petition for lack of merit. These led to the filing of certiorari where Vill Transport admits the negligence of its counsel in not leaving a forwarding address but asserts that its counsel was not actually notified of the mailed letter of the trial court's decision for he had moved from his address of record. Thus, service could not have taken effect after the lapse of the five-day period based on Rule 13, Section 8, ROC. Vill Transport also invoked due process, complaining that it was deprived of its right to appeal from the decision of the lower court on account of its failure to receive a copy of the decision.

ISSUE: Whether or not notice of a decision served upon counsel in a case who did not leave a forwarding address after he had moved from his address of record, is a valid service

HELD: No. The Supreme Court upheld Section 8, Rule 13 of the Rules of Court which provides: "(s)ervice by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.” Vill Transport’s contention is sufficient proof that indeed a first notice was sent to its counsel of record. Its non-receipt by the addressee, however, was due entirely to his neglect in informing the court of the fact that he had moved and had a new address. Conclusive proof of receipt of the registry notice "presupposes that the notice is sent to the correct address as indicated in the records of the court. It does not apply however when the notice was sent to the lawyer's given address but did not reach him because he had moved therefrom without informing the court of his new location. The service at the old address should be considered valid. Otherwise, no process can be served. Failure to claim registered mail of which notice had been duly given by the postmaster is not excusable negligence that would warrant the reopening of a decided case. 11 The same rule applies in cases like the instant one where the counsel, through his negligence, caused the non-delivery of a judicial notice.

DENIED for lack of merit.

Santiago v Fojas AC 4103

FACTS: An expulsion case was faced by the complainants contending that they have illegally removed from the union (FEUFA) membership Mr. Paulino

Salvador. The lower court resolved in favor of Salvador and ordered the complainants to pay, jointly and severally, Mr. Salvador. The case was then elevated to the Court of Appeals. The complainants lost in their petition at the Court of Appeals due to abandonment, failure to act accordingly, or serious neglect of their counsel, Atty. Fojas to answer the civil complaint on an expulsion case. Atty. Fojas assured them that everything was in order and he had already answered the complaint. However, the appellants soon discovered that he never answered it after all because, according to him, he was a very busy man. Atty. Fojas admitted his "mistake" in failing to file an answer for the expulsion case, but he alleges that it was cured by his filing of a motion for reconsideration. However, such motion for reconsideration was denied. Atty. Fojas defended his negligence with the reason that the case was a losing cause after all. Atty. Fojas also asserts that he was about to appeal the said decision to this Court, but his services as counsel for the complainants and for the union were illegally and unilaterally terminated by complainant. Complainants then filed for a disbarment case.

ISSUE: Whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainants an answer

HELD: Yes. The Supreme Court upheld Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. This means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to his overzealousness to question the denial order of the trial court. Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer.

Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free. Furthermore, a breach of Canon 18 of the Code of Professional Responsibility which requires him to serve his clients, the complainants herein, with diligence and, more specifically, Rule 18.03 thereof which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable."

Atty. Fojas’s negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause". The Supreme Court held that he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides: A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case.

REPRIMANDED AND ADMONISHED

Garcia v Francisco AC 3923

FACTS: Garcia, et. al leased a parcel of land to Lee for a period of 25 years beginning May 1, 1964. Despite repeated verbal and written demands, Lee refused to vacate after the expiration of the lease. Lee was represented by Atty. Francisco. On March 29, 1989, Lee, through Francisco, filed a complaint against Garcia and the other lessors for specific performance and reconveyance with damages (docketed as Q-89-2188) but was dismissed by the trial court. On May 29, 1989, Garcia and the other lessors filed a complaint for unlawful detainer against Lee but Lee answered alleging as special and affirmative defense the pendency of case Q-89-2188. This

allegation was rejected by Judge Bautista. On October 24, 1989, Atty. Francisco filed a petition for certiorari and prohibition with preliminary injunction against Judge Bautista and Garcia, et. al (such is violative of the Rule on Summary Procedure prohibiting the filing of petitions for certiorari, mandamus or prohibition against any interlocutory order). On November 13, 1989, Judge Vera issued an order enjoining Judge Bautista from proceeding with the trial of the unlawful detainer case. Upon motion of the complainant, however, the injunction was set aside and Civil Case No. Q-89-3833 was dismissed. Lee did not appeal. On April 6, 1990, Lee through Francisco, filed a petition for certiorari and prohibition with prayer for preliminary injunction with the Court of Appeals against Judge Vera, Judge Singzon, Garcia and the other lessors. Petition was denied. On June 14, 1990, Judge Singzon decided Civil Case no. 1455 in favor of complainant Garcia and the other lessors. Lee did not appeal. Instead, through Francisco again, he filed a petition against Judge Singzon and the other lessors for certiorari and annulment of the decision in the unlawful detainer case and damages with prayer for issuance of preliminary injunction. On July 2, 1990, Garcia's group filed an Omnibus Motion to Dismiss Civil Case. On July 13, 1990, Judge Paralejo issued an order enjoining Judge Singzon from enforcing the decision in that case. Garcia attacked this order in a petition for certiorari and prohibition with prayer for preliminary injunction docketed as CA Sp. No. 22392. The petition was granted by the Court of Appeals. Garcia then filed a motion for execution in the unlawful detainer case. Then, Lee, through Francisco, filed with the Supreme Court a petition for certiorari with preliminary injunction and temporary restraining order against the Court of Appeals, Judge Singzon, Garcia and the other lessors but was denied. Finally, Lee, still through Francisco, filed a petition for certiorari with preliminary injunction against Judge Singzon, Garcia and the other lessors in the Regional Trial Court of Quezon City to set aside and declare the writs of execution in the unlawful detainer case. Such dismissed but again Lee, through Francisco, filed a motion for reconsideration. According to Francisco, he was relieved as counsel while this motion was pending.

ISSUE: Whether or not Atty. Francisco transgressed with the Code of Professional Conduct

HELD: Yes. The Supreme Court held that Atty. Francisco’s cause was without merit. Atty. Francisco abused his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed, he was disdaining the obligation of the lawyer to maintain only such actions or proceedings as appear to him to be just and such defense only as he believes to be honestly debatable under the law. By violating his oath not to delay any man for money or malice, he has besmirched the name of an honorable profession and has proved himself unworthy of trust reposed in him by law as an officer of the Court. Atty. Crisanto l. Francisco took his oath as a lawyer on March 2, 1956. Considering his age and experience in the practice of the laws, he should have known better than to trifle with it and to use it as an instrument for harassment of the complainant and the misuse of judicial processes.

SUSPENDED for 1 year

Del Rosario v CA GR 98149

FACTS: Del Rosario suffered physical injuries when a bus of De Dios Marikina Transportation Co. dragged him along the road. De Dios was to pay damages. Upon appeal at the Court of Appeals, the lower court decision was affirmed in toto but considerably reduced the attorney’s fees from P33,641.50 to P5,000.00. Del Rosario’s motion for reconsideration questioning the reduction of attorney's fees was denied.

ISSUE: Whether or not the reduction of the attorney’s fees was proper

HELD: No. The Supreme Court upheld that the court may allow recovery of attorney’s fees whenever just an equitable based on the following factors: a) the quantity and character of the services rendered; b) the labor, time and trouble involved; c) the nature and importance of the litigation; d) the amount of money or the value of the property affected by the controversy; e) the novelty and difficulty of questions involved; f) the responsibility imposed on counsel; g) the skill and experience called for in the performance of the service; h) the professional character and social standing of the lawyer; i) the customary charges of the bar for similar services; j) the character of employment, whether casual or for establishment client; k) whether the fee is absolute or contingent (it being the rule that an attorney may properly charge a higher fee when it is contingent than when it is absolute); and l) the results secured. The entire complaint ranged four years and six months. Several pleadings were filed and no less than twenty appearances were made by Del Rosario’s counsel, not counting the various other pleadings ultimately filed with the Court of Appeals and now before this Court. Given the nature of the case, the amount of damages involved, and the evident effort exerted by petitioner's counsel, the trial court's award of attorney's fees for P33,641.50 would appear to us to be just and reasonable.

Petition GRANTED and attorney’s fees REINSTATED

Leviste v CA GR L-29184

FACTS: On September 7, 1963, Leviste, a practicing attorney, entered into a written agreement with the Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. It was agreed that the contigent fee would be 35% of the property Rosa will receive upon the probate of the will. On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to "conflicting interest." On September 20, 1965, petitioner filed a motion to Intervene to Protect His Rights to Fees for Professional Services but was soon denied since he had not filed a claim for attorney's fees nor recorded his attorney's lien. On November 23, 1965, petitioner filed a formal statement of Claim for Attorney's Fees and Recording of Attorney's Lien. Despite the denial of his motion to intervene, Atty. LEviste kept on receiving copies of the court's orders, as well the pleadings of the other parties in the case. He also continued to file pleadings. On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a motion To Withdraw Petition for Probate. They alleging that Del Rosario waived her rights to the devise and agreed that the De Guzman brothers and sisters who opposed her petition for probate, shall inherit all the properties left by the decedent. The trial court denied the motion to withdraw the petition for being contrary to public policy. The court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses. Atty. Leviste filed an appeal bond, notice of appeal, and record on appeal. The private respondents filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest. Atty. Leviste opposed the motion claiming that he has a direct and material interest in the decision sought to be reviewed. He also asked that he be substituted as party-petitioner but was denied. Upon appeal to the Court of Appeals, he suffered the same fate. Leviste brought this case to the Supreme Court asserting Art. 1052 of the Civil Code: ART. 1052: If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. Thus, Leviste asserts he has a right to accept for his client Del Rosario to the extent

of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contigent attorney's fees.

ISSUE: Whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trial court.

HELD: No. The Supreme Court held Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. Also, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. The contract for contingent attorney's fees neither gives, nor purports to give, to the lawyer any right whatsoever, personal or real, in his client’s share of the properties. The amount thereof is simply a basis for the computation of said fees. SC claimed that the lower court did not err in holding that notice of an attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to collect a certain amount for his services in case his client is awarded a certain sum by the court.

DENIED for lack of merit

Sesbreno v CA GR 117438

FACTS: Fifty-two employees sued the Province of Cebu and Governor Rene Espina for reinstatement and backwages imploring Atty. Pacquiao as counsel who was later replaced by Atty. Sesbreno. The employees and Atty. Sesbreno agreed that he is to be paid 30% as attorney's fees and 20% as expenses taken from their back salaries. Trial court decided in favor of the employees and ordered the Province of Cebu to reinstate them and pay them back salaries. The same was affirmed in toto by the Court of Appeals and ultimately the Supreme Court. A compromise agreement was entered into by the parties in April 1979. The former employees waived their right to reinstatement among others. The Province of Cebu released P2,300,000.00 to the petitioning employees through Atty. Sesbreno as "Partial Satisfaction of Judgment." The amount represented back salaries, terminal leave pay and gratuity pay due to the employees. Ten employees filed manifestations before the trial court asserting that they agreed to pay Atty. Sesbreno 40% to be taken only from their back salaries. The lower court issued two orders, with which petitioner complied, requiring him to release P10,000.00 to each of the ten private respondents and to retain 40% of the back salaries pertaining to the latter out of the P2,300,000.00 released to him. On March 28, 1980, the trial court fixed the attorney’s fees a total of 60% of all monies paid to the employees. However, trial court modified the award after noting that petitioner's attorney's lien was inadvertently placed as 60% when it should have been only 50%. Atty. Sesbreno appealed to the Court of Appeals claiming additional fees for legal services but was even further reduced to 20%.

ISSUE: Whether the Court of Appeals had the authority to reduce the amount of attorney's fees awarded to petitioner Atty. Raul H. Sesbreño, notwithstanding the contract for professional services signed by private respondents

HELD: Yes. The Supreme Court noted that the contract of professional services entered into by the parties 6 authorized petitioner to take a total of 50% from the employees' back salaries only. The trial court, however, fixed the lawyer's fee on the basis of all monies to be awarded to private respondents. Fifty per cent of all monies which private respondents may receive from the provincial government, according to the Court of Appeals, is

excessive and unconscionable, not to say, contrary to the contract of professional services. What a lawyer may charge and receive as attorney's fees is always subject to judicial control. A stipulation on a lawyer's compensation in a written contract for professional services ordinarily controls the amount of fees that the contracting lawyer may be allowed, unless the court finds such stipulated amount unreasonable unconscionable. A contingent fee arrangement is valid in this jurisdiction and is generally recognized as valid and binding but must be laid down in an express contract. if the attorney's fees are found to be excessive, what is reasonable under the circumstances. Quantum meruit, meaning "as much as he deserves," is used as the basis for determining the lawyer's professional fees in the absence of a contract. The Supreme Court averred that in balancing the allocation of the monetary award, 50% of all monies to the lawyer and the other 50% to be allocated among all his 52 clients, is too lop-sided in favor of the lawyer. The ratio makes the practice of law a commercial venture, rather than a noble profession. It would, verily be ironic if the counsel whom they had hired to help would appropriate for himself 50% or even 60% of the total amount collectible by these employees. 20% is a fair settlement.

Petition is DENIED

Abrogar v Desear GR 67970

FACTS: Socorro Desear et.al failed to comply with a final and executory judgment regarding a civil case. Their two parcels of land with a combined market value of P75,000.00, were placed for public sale by the Provincial Sheriff. One day before the acution, Soccoro Desear moved to postpone the auction sale with a condition that the publication fees would be paid. Socorro Desear did not pay as ordered. Since there as no valid postponement, the auction was held almost four months later. A Sheriff’s Certificate of Sale was issued. There was no showing that private respondent Socorro Desear agreed to the July 16, 1971 auction sale. However, it is indisputable that there was neither new notice nor new publication of the said auction sale. Socorro Desear filed a complaint for annulment of the sale. Trial court ruled that the Sheriffs Final Sale was null and void for lack of notice and publication and awarded attorney's fees in the amount of P2,000.00 in favor of Socorro Desear’s party. Upon appeal to Court of Appeals, the trial court’s decision was affirmed in toto. The petitioner, Jose Abrogar et.al, filed a certiorari case with the Supreme court contending the following: (1) that there was a valid postponement of the date of the auction sale originally set for March 27, 1971; and (2) there was no prayer or legal bases for the awarding attorney's fees of P2,000.00.

ISSUES: 1. Whether or not there was valid postponement for the date of auction sale

2. Whether or not the award of attorney’s fees was proper even without prayer

HELD: 1. No. The public auction sale set for March 27, 1971 should have been held considering that the said schedule complied with all the requirements of law. The officer may adjourn the sale from day to day if it is necessary to do so for lack of time to complete the sale but he may not adjourn to another date unless with the written consent of the parties. In the present case, there was no written agreement between the debtor and the creditor to postpone the sale, and in fact there was no sale held on the scheduled date 11 to warrant the application of Section 24, Rule 39 of the Revised Rules of Court. Considering, therefore, that there was no valid postponement of the original date of the auction sale on March 27, 1971, "then the alleged public auction sale on July 16, 1971 or close to four months after the original date of sale on March 27, 1971 without the proper notice and publication is null and void" as correctly pointed out by the respondent court.

2. No. The Supreme Court noted that there is neither an allegation nor evidence to support the award of P2,000.00 by way of attorney's fees in

favor of private respondents. The complaint does not pray for attorney's fees. Even the transcript of stenographic notes in the trial does not contain any testimony to support an award of attorney's fees. The claim for attorney's fees was neither pleaded nor proved.The exercise of judicial discretion in the award of attorney's fees under Article 2208 (ii) of the New Civil Code demands a factual, legal, and equitable justification. Without such justification, the award is a conclusion without a premise, its basis being improperly left to speculation and conjecture. The reason for the award of attorney's fees must be stated in the text of the court's decision, otherwise, if it is stated only in the dispositive portion of the decision, the same must be disallowed on appeal.

Award of attorney’s fees REVERSED. Auction sale, NULL and VOID.

Solid Homes, Inc v CA GR 97255

FACTS: Investco Inc., Perez and Staley, private respondents contended that, on September of 1976, they entered into a contract with Solid Homes, selling six (6) parcels of land in Quezon City and Marikina for P10,211,075.00. Private respondents furthered that Solid Homes violated the terms of the agreement by refusing to pay the balance of P4,800,282.91 and by failing to negotiate a settlement with the tenants and squatters of the property despite its receipt from Investco of P350,000.00 for that specific purpose. Private respondents filed collection of sums of money, damages and attorney's fees with trial court. The trial court rendered judgment ordering Solid Homes to pay remaining amount with P250,000 attorney’s fees. Upon appeal to the Court of Appeals, it modified the lower court’s judgment by lowering the attorney’s fees to P50,000. In the instant petition for review, petitioner Solid Homes argues (a) that the Court of Appeals should not have awarded attorney's fees, there being an absence of any special finding of fact to justify such award. The Supreme Court required private respondents to comment. Atty. Alejandro Barin withdrew as counsel for respondents Investco, Inc., Staley and Perez. They required private respondents to submit the name and address of their new counsel but no compliance has been made. Pending the judgment of the trial court for the collection of sums of money, Investco sold the same parcels of land involved to Armed Forces of the Philippines Mutual Benefit Association. Solid Homes filed two civil cases against AFPMBA and private respondents for nullification of second deed of sale. Trial court of Quezon City ruled in favor of Solid Homes in the first case. Upon appeal with the Court of Appeals, the decision was reversed. The case was elevated to the Supreme Court. For the second case, the trial court of Pasig City ruled in favor of Solid Homes which was then affirmed by Court of Appeals upon appeal. The Court has yet to hear from private respondents.

ISSUE: 1. Was there enough bases to support court’s award for attorney’s fees?

2. Whether or not the payment schedule should be adjusted

HELD: 1. No. Article 2208 of the Civil Code allows attorney's fees to be awarded by a court when its claimant is compelled to litigate with third persons or to incur expenses to protect his interest by reason of an unjustified act or omission of the party from whom it is sought. While judicial discretion is here extant, an award thereof demands, nevertheless, a factual, legal or equitable justification. The Supreme Court held that the records do not show enough basis for sustaining the award for attorney's fees and to adjudge its payment by petitioner. On the contrary, the appellate court itself has found that petitioner's act of withholding payment could not be said to be all that unjustified.

2. Yes. It is undisputed that appellant Solid Homes had made a total payment of P6,126,645.00 leaving a balance of P4,800,282.91, which refers to the 6th

to the 10th installments. . Of the 5th installment due on July 22, 1980, the following payments were made by appellant:

Oct. 30, 1980 to Nov. 10, 1980 P150,000.00

Nov. 18, 1980 to Dec. 10, 1980 270,000.00

Dec. 18, 1980 to Jan. 14, 1981 101,853.12

Jan. 20 to Feb. 12, 1981 95,000.00

Feb. 16 to Feb. 19, 1981 115,000.00

—————

P731,853.12

Thereafter, no further payment was made by appellant contending that under the provisions of paragraph 1(b) of the contract, the payment schedule should be adjusted. Should Investco obtain titles to the properties after July 22, 1977, the due dates of the down payment and the subsequent payments on the balance shall be adjusted accordingly.

Court of Appeals decision AFFIRMED. Attorney’s Fees DELETED.

B.R. Sebastian Enterprises v CA GR 41862

FACTS: Eulogio B. Reyes, now deceased, filed an action for damages against the Director of Public Works and BR Sebastian Enterprises. Trial court found B.R. Sebastian liable for damages but absolved other defendants. B.R. Sebastian, thru its counsel, the law firm of Baizas, Alberto and Associates, timely appealed the adverse decision to the respondent Court of Appeals. During the pendency of the appeal, Eulogio B. Reyes died and was substituted by his heirs. On February 1974, B.R Sebastian, thru its counsel of record, received notice to file Appellant's Brief within 45 days from receipt thereof; however, it failed to comply. Court of Appeals issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant's Brief within the reglementary period. On September 1974, Court of Appeals dismissed the appeal. On September 1974, petitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm. Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant's Brief but failed to submit it through oversight and inadvertence, had also left the firm. Court denied the motion for reconsideration. No action was taken by petitioner from within the period to file a petition for review, the same became final and executory, and the records of the case were remanded. Trial court issued a writ of execution. But on November 1975, petitioner filed with Court of Appeals a Motion to Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary Injunction but was subsequently denied. Petitioner filed prohibition and mandamus, with prayer for preliminary injunction with the Supreme Court to Court of Appeals denial of petitioner’s motion. SC required them to comment and soon after, some amendments were made. Ultimately, the petition was denied. But on May 1976, petitioner filed a motion for its reconsideration claiming that since it was deprived of the right to appeal without fault on its part, the petition should be given due course. Supreme Court reconsidered and required both parties to submit simultaneously their respective Memoranda.

ISSUE: whether or not the respondent Court of Appeals gravely abused its discretion in denying petitioner's motion to reinstate its appeal, previously dismissed for failure to file the Appellant's Brief

HELD: No. The Supreme Court held that no fraud is involved in the present case. What was present was simple negligence on the part of petitioner's counsel, which is neither excusable nor unavoidable. Petitioner thus failed to demonstrate sufficient cause to warrant a favorable action on its plea. Granting that the power or discretion to reinstate an appeal that had been dismissed is included in or implied from the power or discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and justify its exercise. Otherwise, it cannot and must not be upheld. The "confusion" in the office of the law firm following the death of Atty. Crispin Baizas is not a valid justification for its failure to file the Brief. With Baizas' death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. The law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer. The rule is settled that negligence of counsel binds the client. Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case.

Petition DISMISSED.

Orcino v Gaspar AC 3773

FACTS: Orcino engaged the services of Atty. Gaspar to prosecute a criminal case she intended to file against several suspects in the slaying of her husband. Orcino bound herself to pay respondent legal fees ofP20,000.00 -- P10,000.00 to be paid upon signing of the contract and the balance to be paid on or before the conclusion of the case. She was also to pay P500.00 per appearance of respondent before the court and fiscal. This agreement was embodied in a contract executed on February 22, 1991. Orcino complied with the contract and Atty. Gaspar entered into his duties. Atty. Gaspar, however failed to attend the hearing scheduled in August 1991. It was at this hearing that the court, over complainant's objections, granted bail to all the accused. Orcino immediately went to respondent's residence and confronted him with his absence. Gaspar explained that he did not receive formal notice of the hearing. She asked for the records of the case saying that she could refer them to another lawyer. Gaspar then gave her the records. Orcino never returned the records nor did she see Gaspar. On September 18, 1991, Atty. Gaspar filed before the trial court a Motion to Withdraw as Counsel without the consent of Orcino. The court issued an order directing Gaspar to secure complainant's consent to the motion and his appearance as private prosecutor shall continue until he has secured this consent. Oricno refused to sign her conformity. Atty. Gaspar did not appear at the hearings nor did he contact Orcino, thus she was compelled to engage the services of another lawyer.

ISSUE: Whether or not Atty. Gaspar had the right to terminate the attorney-client relation

HELD: The client has the absolute right to terminate the attorney-client relation at any time with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. An attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He cannot abandon it without reasonable cause. A lawyer's right to withdraw from a case before its final adjudication arises only from the client's written consent or from a good cause. Section 26 of Rule 138 of the Revised Rules of Court provides: "Sec. 26. Change of attorneys -- An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and

attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.” In the present case, Orcina did not give her written consent to Gaspar’s withdrawal. He did not even file an application with the court for it to determine whether he should be allowed to withdraw.

But granting that respondent's motion without complainant's consent was an application for withdrawal with the court, the Supreme Court found this reason insufficient to justify the withdrawal. Atty. Gaspar’s withdrawal was made on the ground that "there no longer exists the xxx confidence" between them and that there had been "serious differences between them relating to the manner of private prosecution. Rule 22.01 of Canon 22 of the Code of Professional Responsibility provides:

"CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES. Rule 22.01-- A lawyer may withdraw his services in any of the following cases: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases." The instant case does not fall under any of the grounds mentioned. Neither can this be considered similar or analogous to any. Orcina was upset by Atty. Gaspar’s absence at the hearing where bail was granted to the suspected killers of her husband and it was thus natural for her to react by confrontation. Her words were uttered in a burst of passion and cannot be construed to have intended to terminate Atty. Gaspar’s services. She made this clear when she refused to sign his "Motion to Withdraw as Counsel." Even if Atty. Gaspar was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected. The lawyer has no right to presume that his petition for withdrawal will be granted by the court. Until his withdrawal shall have been approved, the lawyer remains counsel of record.

Return the amount owed to Orcina. Admonished to exercise prudence.