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Monthly Archives: October 2012

Presumptive Death under Article 41 of Family Code

There is a complicated situation under the Family Code where it allows, as an exception to the general accepted rule, the validity of two marriages involving a present spouse and a reappearing absent spouse. In Article 41:

A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence for only two years shall be sufficient.

For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the reappearance of the absent spouse.

First, let us first establish what is meant by “well-founded belief”. Obviously, it is easy for a present spouse, especially when the said spouse wishes to remarry, to believe that the other spouse is already dead. In Republic of the Philippines vs. Court of Appeals (G.R. No. 159614, December 9, 2005), the Supreme Court said that:

Belief is a state of the mind or condition prompting the doing of an overt act.  It may be proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth.  Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions, competence evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse.

If the well-founded belief within the periods stated under Article 41 is acceptable to the court, a summary proceeding is to be instituted. Full blown trial is no longer necessary. Once the Declaration of Presumptive Death is issued by the competent court, it will be immediately be final and executory. This is not subject to ordinary appeal. In Republic of the Philippines vs. Tango (G.R. No. 161062, July 31, 2001), the Supreme Court settled the rule regarding appeal judgments rendered in such proceeding under the Family Code:

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction.

Once a decision becomes final and executory, it cannot be directly or collaterally attacked again by way of appeal other than that resulting from excess or lack of jurisdiction. In the recent ruling of Chan-Tan vs. Tan (G.R. No. 167139, February 25, 2010):

Nothing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law. The reason is grounded on the fundamental considerations of public policy and sound practice that, at the risk of occasional error, the judgments or orders of courts must be final at some definite date fixed by law. Once a judgment has become final and executory, the issues there should be laid to rest.

Now suppose the present spouse validly remarry another person after the summary proceeding. Then after a few years, the absent spouse of the previous marriage suddenly reappeared.  This will now be a case where a present spouse is “validly” married to two persons. Remember that the marriage with reappearing spouse was never severed.   The subsequent marriage cannot be bigamous either. However, the conflict may be resolved by the filing of the reappearing spouse of an Affidavit of Reappearance in accordance with Article 42 of the Family Code. In such case, the subsequent marriage will automatically be terminated upon the recording of the Affidavit of Reappearance, except when the previous marriage is declared void ab initio.

But what will happen if the reappearing spouse, or any interested person, did not institute any action? Take the case of Social Security System vs. Teresita Jarque Vda. De Bailon (G.R. No. 165545, March 24, 2006):

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse’s physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law.

By this ruling of the Supreme Court, the appearance of the absentee spouse, per se,  does not ipso jure terminate the subsequent marriage. This may cause some complications later. There will be no further issue if the reappearing spouse will assert locus standi on their marriage. The subsequent marriage will be void after some administrative procedures. This is without prejudice to the outcome of any judicial proceeding questioning the reappearance.

An argumentative situation now comes if the reappearing spouse chooses to do nothing to reclaim the previous marriage. The reappearing spouse cannot contract a subsequent marriage because of a valid and subsisting marriage with the present spouse. But can the former maintain a (sexual) relationship with the latter without being penalized under the law? Technically, yes. Is there no cause of action for the subsequent spouse to sue the present spouse? The possibility of suing with bigamy was explained in the case of Manuel vs. People of the Philippines (G.R. No. 165842, November 29, 2005):

Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime.  As explained by former Justice Alicia Sempio-Diy:

[S]uch rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established. (Underscoring supplied.)

A lot of legal conflicts and infirmities will rise from the above scenario. It may also appear that the subsequent spouse has no cause of action against any right deprived of him. Take for instance the knowledge of the subsequent spouse of the infidelity of the present spouse. The former’s claim on either criminal case of adultery or infidelity as a ground for Legal Separation is questionable. This is from the fact that the reappearing spouse and the present spouse are still considered to be married for any or all legal purposes.

In conclusion, Article 41 of the Family Code provides a speedy and efficient way of declaring absentees especially for the purposes of remarriage. It also provides a reckoning point in the recovery of civil rights that might have been lost from the absenteeism. However, there are still gray areas that need to be reinforced. There can be more impaired or prejudiced rights if the situation will involve presence of children in both marriages. Such unwanted situations may be avoided if there would be a more straightforward rule like the case where appearance of the absentee per se, provided that it is authentic, will cause the judicial declaration of presumptive death immediately rendered functus officio, concurring to the view of Atty. Mel Sta. Maria in his book “Persons and Family Relations Law”, Fifth Edition (2010), pages 282-284.

 
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Posted by on October 20, 2012 in Civil Law

 

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Bautista vs Gonzales [A.M. No. 1625. February 12, 1990]

[Per Curiam]

FACTS:

In a verified complaint filed by Angel L. Bautista, respondent Ramon A. Gonzales was charged with malpractice, deceit, gross misconduct and violation of lawyer’s oath. Required by this Court to answer the charges against him, respondent filed a motion for a bill of particulars asking this Court to order complainant to amend his complaint by making his charges more definite. In a resolution the Court granted respondent’s motion and required complainant to file an amended complaint. Complainant submitted an amended complaint for disbarment, alleging that respondent committed the following acts:

1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado, Nestor Fortunado and Editha Fortunado [hereinafter referred to as the Fortunados] to pay all expenses, including court fees, for a contingent fee of fifty percent (50%) of the value of the property in litigation.

x x x

4. Inducing complainant, who was his former client, to enter into a contract with him on August 30, 1971 for the development into a residential subdivision of the land involved in Civil Case No. Q-15143, covered by TCT No. T-1929, claiming that he acquired fifty percent (50%) interest thereof as attorney’s fees from the Fortunados, while knowing fully well that the said property was already sold at a public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte and registered with the Register of Deeds of Iligan City;

x x x

Pertinent to No. 4 above, the contract, in No. 1 above, reads:

We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent Ramon Gonzales] defray all expenses, for the suit, including court fees.

ISSUE:

Whether or not respondent committed serious misconduct involving a champertous contract.

HELD:

YES. Respondent was suspended from practice of law for six (6) months.

RATIO:

The Court finds that the agreement between the respondent and the Fortunados contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with a client to pay or bear the expenses of litigation. [See also Rule 16.04, Code of Professional Responsibility]. Although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement. The agreement between respondent and the Fortunados, however, does not provide for reimbursement to respondent of litigation expenses paid by him. An agreement whereby an attorney agrees to pay expenses of proceedings to enforce the client’s rights is champertous [citation omitted]. Such agreements are against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute [citation omitted]. The execution of these contracts violates the fiduciary relationship between the lawyer and his client, for which the former must incur administrative sanctions.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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Nakpil vs Valdes [A.C. No. 2040. March 4, 1998]

Ponente: PUNO, J.

FACTS:

Jose Nakpil, husband of the complainant, became interested in purchasing a summer residence in Moran Street, Baguio City. For lack of funds, he requested respondent to purchase the Moran property for him. They agreed that respondent would keep the property in thrust for the Nakpils until the latter could buy it back. Pursuant to their agreement, respondent obtained two (2) loans from a bank which he used to purchase and renovate the property. Title was then issued in respondent’s name.

The ownership of the Moran property became an issue in the intestate proceedings when Jose Nakpil died. Respondent acted as the legal counsel and accountant of his widow. Respondent excluded the Moran property from the inventory of Jose’s estate and transferred his title to the Moran property to his company, the Caval Realty Corporation.

ISSUE:

Whether or not there was conflict of interest between the respondent Atty. Valdes and the complainant.

HELD:

YES. Respondent was suspended from practice of law for one (1) year.

RATIO:

[T]here is no question that the interests of the estate and that of its creditors are adverse to each other. Respondent’s accounting firm prepared the list of assets and liabilities of the estate and, at the same time, computed the claims of two creditors of the estate. There is clearly a conflict between the interest of the estate which stands as the debtor, and that of the two claimants who are creditors of the estate.

[R]espondent undoubtedly placed his law firm in a position where his loyalty to his client could be doubted. In the estate proceedings, the duty of respondent’s law firm was to contest the claims of these two creditors but which claims were prepared by respondent’s accounting firm. Even if the claims were valid and did not prejudice the estate, the set-up is still undesirable. The test to determine whether there is a conflict of interest in the representation is probability, not certainty of conflict. It was respondent’s duty to inhibit either of his firms from said proceedings to avoid the probability of conflict of interest.

Public confidence in law and lawyers may be eroded by the irresponsible and improper conduct of a member of the bar. Thus, a lawyer should determine his conduct by acting in a manner that would promote public confidence in the integrity of the legal profession. Members of the bar are expected to always live up to the standards embodied in the Code of Professional Responsibility as the relationship between an attorney and his client is highly fiduciary in nature and demands utmost fidelity and good faith. In the case at bar, respondent exhibited less than full fidelity to his duty to observe candor, fairness and loyalty in his dealings and transactions with his clients.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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B.R. Sebastian Enterprises, Inc. vs C.A. [G.R. No. L-41862. February 7, 1992]

Ponente: DAVIDE, JR., J.

FACTS:

[P]etitioner, thru its then counsel of record, Baizas, Alberto and Associates, received notice to file Appellant’s Brief within 45 days from receipt thereof. Counsel for petitioner failed to file the Brief thus respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant’s Brief within the reglementary period. As the latter failed to comply with the above Resolution, respondent Court issued another Resolution this time dismissing petitioner’s appeal.

[P]etitioner, 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 of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant’s Brief but failed to submit it through oversight and inadvertence, had also left the firm.

ISSUE:

Whether or not the death of a partner extinguish the lawyer-client relationship with the law firm.

HELD:

NO. Petition was dismissed.

RATIO:

Petitioner’s counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner. With Baizas’ death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him. Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.

Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence, thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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Donald Dee vs C.A. [G.R. No. 77439. August 24, 1989]

Ponente: REGALADO, J.

FACTS:

Petitioner and his father went to the residence of private respondent, accompanied by the latter’s cousin, to seek his advice regarding the problem of the alleged indebtedness of petitioner’s brother, Dewey Dee, to Caesar’s Palace, a well-known gambling casino at Las Vegas, Nevada, U.S.A. Private respondent personally talked with the president of Caesar’s Palace at Las Vegas, Nevada. He advised the president that for the sake and in the interest of the casino it would be better to make Ramon Sy answer for the indebtedness. The president told him that if he could convince Ramon Sy to acknowledge the obligation, Dewey Dee would be exculpated from liability for the account. Upon private respondent’s return to Manila, he conferred with Ramon Sy and the latter was convinced to acknowledge the indebtedness. In August, 1981, private respondent brought to Caesar’s Palace the letter of Ramon Sy owning the debt and asking for a discount. Thereafter, the account of Dewey Dee was cleared and the casino never bothered him.

Having thus settled the account of petitioner’s brother, private respondent sent several demand letters to petitioner demanding the balance of P50,000.00 as attorney’s fees. Petitioner, however, ignored said letters.

ISSUE:

Whether or not there is an attorney-client relationship between parties.

HELD:

YES. Court affirmed the decision of the defendant Court of Appeals. Costs against the petitioner.

RATIO:

[T]here is no question that professional services were actually rendered by private respondent to petitioner and his family. Through his efforts, the account of petitioner’s brother, Dewey Dee, with Caesar’s Palace was assumed by Ramon Sy and petitioner and his family were further freed from the apprehension that Dewey might be harmed or even killed by the so-called mafia. For such services, respondent Mutuc is indubitably entitled to receive a reasonable compensation and this right cannot be concluded by petitioner’s pretension that at the time private respondent rendered such services to petitioner and his family, the former was also the Philippine consultant of Caesar’s Palace.

A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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In Re Lozano [54 Phil. 801. July 24, 1930]

Ponente: MALCOLM, J.

FACTS:

Sometime ago, the complaint of an attorney against a Judge of First Instance was by resolution of this court referred to the Attorney-General for investigation, report, and recommendation. The Solicitor-General was designated to conduct the investigation of the charges, and pursuant to said designation, proceeded to the municipality of Capiz, Province of Capiz, to take the testimony of certain witnesses. The investigation was conducted secretly, as is customary in cases of this character. Notwithstanding, on April 29, 1930, El Pueblo, a newspaper published in Iloilo and edited by Severino Lozano, printed an account of the investigation written by Anastacio Quevedo, said to be an employee in the office of the Judge under investigation.

The article purports to give an account of the evidence of the different witnesses. Regarding this account, the complainant attorney alleges that the facts therein contained are “false, malicious, and untrue” and that “said report took sides with the respondent judge . . . and expressed an opinion as to the merits of the same, with the object undoubtedly, to influence the action of the investigator and the public in general and to obstruct, embarrass or impede the course of the present investigation.” In the same connection, the Attorney-General states that the newspaper report “does not contain a fair and true account of the facts disclosed at the investigation, . . . creating a wrong impression in the mind of the public and tending to influence improperly the action of this court in the said pending matter.” Under the circumstances, the observations of the Attorney-General must necessarily be accepted as true.

ISSUE:

Whether or not Severino Lozano and Anastacio Quevedo are guilty of contempt of court.

HELD:

YES. Court ordered each to pay the court a nominal sum of twenty pesos (P20) within fifteen (15) days.

RATIO:

The rule is well established that the newspaper publications tending to impede, obstruct, embarass, or influence the courts in administering justice in a pending suit or proceeding constitute criminal contempt which is summarily punishable by the courts. The rule is otherwise after the cause is ended. It is also regarded as an interference with the work of the courts to publish any matters which their policy requires should be kept private, as for example the secrets of the jury room, or proceedings in camera.

The liberty of the citizen must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense. As important as is the maintenance of the Judiciary. Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means of diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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First Philippines International Bank vs. C.A. [G.R. No. 115849. January 24, 1996]

Ponente: PANGANIBAN, J.

FACTS:

[D]uring the pendency of the proceedings in the Court of Appeals, Henry Co and several other stockholders of the Bank (petitioner), through counsel Angara Abello Concepcion Regala and Cruz, filed an action (Second Case) purportedly a “derivative suit” with the Regional Trial Court of Makati, Branch 134 against Encarnacion, Demetria and Janolo “to declare any perfected sale of the property as unenforceable and to stop Ejercito from enforcing or implementing the sale. In his answer, Janolo argued that the Second Case was barred by litis pendentia by virtue of the case then pending in the Court of Appeals. During the pre-trial conference in the Second Case, plaintiffs filed a Motion for Leave of Court to Dismiss the Case Without Prejudice. Private respondent opposed this motion on the ground, among others, that plaintiff’s act of forum shopping justifies the dismissal of both cases, with prejudice. Private respondent, in his memorandum, averred that this motion is still pending in the Makati RTC.

[P]etitioners explain that there is no forum-shopping because:

1)    In the earlier or “First Case” from which this proceeding arose, the Bank was impleaded as a defendant, whereas in the “Second Case” (assuming the Bank is the real party in interest in a derivative suit), it was the plaintiff;

x x x

ISSUE:

Whether or not there is forum-shopping on the part of petitioner Bank.

HELD:

YES. Petition was denied. Assailed decision was affirmed. Petitioner was reprimanded. Costs against the petitioner.

RATIO:

[W]here a litigant (or one representing the same interest or person) sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending, the defense of litis pendencia in one case is a bar to the others; and, a final judgment in one would constitute res judicata and thus would cause the dismissal of the rest. In either case, forum shopping could be cited by the other party as a ground to ask for summary dismissal of the two (or more) complaints or petitions, and for the imposition of the other sanctions, which are direct contempt of court, criminal prosecution, and disciplinary action against the erring lawyer.

[W]hat is truly important to consider in determining whether forum-shopping exists or not is the vexation caused the courts and parties-litigant by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or to grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issue. In this case, this is exactly the problem: a decision recognizing the perfection and directing the enforcement of the contract of sale will directly conflict with a possible decision in the Second Case barring the parties from enforcing or implementing the said sale. Indeed, a final decision in one would constitute res judicata in the other.

 
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Posted by on October 16, 2012 in Case Digests, Legal Ethics

 

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