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EN BANC

A.C. No. 2614 May 21, 1991

MAXIMO DUMADAG, Petitioner, vs. ERNESTO L. LUMAYA, Respondent.

R E S O L U T I O N

PER CURLAM:p

Respondent Atty. Ernesto L. Lumaya of Banganga, Davao Oriental is administratively charged with unethical practices, conflict of interest and disloyalty to client by Maximo Dumadag in a sworn letter-complaint dated 22 December 1983. Respondent was complainant's counsel in Civil Case No. 148 before the RTC of Banganga, Davao Oriental, filed against spouses Jose and Jesusa Avellanosa, involving the sale of a parcel of land. Civil Case No. 148 was terminated via a compromise agreement which provided, inter alia, that not later than 1 October 1979, the Avellanosas would pay Dumadag the amount of P4,644.00 and in turn Dumadag would execute in favor of the Avellanosas a deed of reconveyance of the land. However, in case of failure of the Avellanosas to make full payment of the P4,644.00 within the stipulated period, Dumadag would be entitled to obtain possession of the land. The compromise agreement, prepared by respondent, was approved by the trial court. The Avellanosas failed to comply with their undertaking under the compromise agreement to pay complainant the amount of P4,644.00 not later than 1 October 1979, which necessitated the filing by Dumadag of a motion for execution.chanroblesvirtualawlibrarychanrobles virtual law library

According to complainant, he asked his then counsel, herein respondent, to prepare and file the appropriate motion for execution; however, the latter failed to do so. It was through the assistance of the court stenographer, Mr. Eleuterio Catubig, that complainant himself signed and filed the motion and later obtained the writ of execution.chanroblesvirtualawlibrarychanrobles virtual law library

When the writ of execution was issued, Deputy Sheriff Rogelio Dongiapon, according to the complainant, instead of serving the same on the Avellanosas, connived with respondent attorney by selling a one (1) hectare portion of the land subject of Civil Case No. 148 to one Eleonora Astudillo to satisfy complainant's claim out of the proceeds of the sale, without however Dumadag's knowledge and consent. The Deed of Sale between the Avellanosas and Astudillo, dated 14 September 1981, was notarized by respondent attorney and stated that the "parcel of land, together with all the improvements found and existing thereon, (is) free from liens and encumbrances, whatsoever. "It expressly stated on its face "That this Deed of Sale is executed also to satisfy finally the claim of Maximo Dumadag in Civil Case No. 148 of the CFI of Banganga, Davao Oriental."chanrobles virtual law library

After the sale to Astudillo, or on 16 June 1983, Deputy Sheriff Rogelio Dongiapon made a Sheriff's Return of Service which stated:

Respectfully returned to MR. JAIME B. TOROBA, Officer-in-Charge, Office of the Clerk of Court, this Court, the original copy of the Writ of Execution in Civil Case No. 148, with the information that said Writ of execution was partially satisfied the defendants Jose R. Avellanosa and Jesusa N. Avellanosa having paid the amount of FOUR THOUSAND THREE HUNDRED FORTY FOUR (P4,344. 00) Philippine Currency to Atty. Ernesto L. Lumaya, plaintiff's counsel in the above entitled case in November, 1981, with the balance of P300.00 which the defendants Jose R. Avellanosa and Jesusa N. Avellanosa have not paid up to this moment. (Emphasis ours)

The said amount of P4,344.00, according to complainant, was not delivered to him by respondent attorney, even after the former made a demand on the latter.chanroblesvirtualawlibrarychanrobles virtual law library

After respondent's comment and complainant's reply had been filed, the case was referred to the Office of the Solicitor General for investigation, report and recommendation. Actual investigation and hearings were conducted by Provincial Fiscal Arnulfo M. Agleron of Mati, Davao Oriental, who submitted a report to the Office of the Solicitor General (OSG). Based on said report, the OSG prepared and submitted its own report, including therewith a complaint for disbarment against respondent attorney, pursuant to Sec. 4, Rule 139 of the Rules of Court.chanroblesvirtualawlibrarychanrobles virtual law library

While respondent later filed an answer to the OSG - prepared complaint against him, he however, did not appear at the earlier investigation despite due notice. We will nonetheless consider his answer as well as comment prior to the referral of the case to the OSG.chanroblesvirtualawlibrarychanrobles virtual law library

Respondent claims that it was the presiding judge in Civil Case No. 148 who played an active role in the settlement proceedings between Dumadag and the Avellanosas, and that it is unfortunate, according to respondent, that there are no written records to prove this fact, but that it was agreed that Jose Avellanosa would pay Dumadag the amount of P4,644.00 in installments, which he did, and that complainant Dumadag claimed and received the money each time payment was made by Jose Avellanosa; thru herein respondent. His (respondent's) mistake according to him, was that he merely noted at the back of his own copy of the judgment by compromise the sums paid, all in the total amount of P3,000.00, and all taken by complainant Dumadag, without any receipts. All his (respondent's) records of the case, according to respondent, were also taken by Dumadag from his office when he became a provincial board member.chanroblesvirtualawlibrarychanrobles virtual law library

Respondent also denies having been asked by Dumadag to file a motion for execution in Civil Case No. 148 or having received from him a cow or P700.00; however he was promised one cow since he paid the expenses in Civil Case No. 148.chanroblesvirtualawlibrarychanrobles virtual law library

Anent the sale by the Avellanosas to Eleonora Astudillo, the same, according to respondent, was a private sale, Dumadag was not a party thereto. Respondent also claims that he was not aware that a motion for execution had been filed in Civil Case No. 148 by Dumadag when the Deed of Sale between the Avellanosas and Astudillo was presented to him for notarization, and that he did not see any cash change hands as he was informed that it was just a ratification of an earlier verbal sale. He notarized the deed of sale without intention to cause any damage. Respondent however admits that in a later case, Civil Case No. 283 (where the validity of the sale from the Avellanosas to Astudillo was assailed by Dumadag), it was disclosed that from the P7,000.00 actually realized from the sale of the land to Astudillo, the sheriff deducted P1,605.00 for his expenses, with the balance being given to the vendors (Avellanosas), because Dumadag had already been paid by the Avellanosas thru their lawyer, herein respondent.chanroblesvirtualawlibrarychanrobles virtual law library

In the Court's resolution of 16 April 1990, respondent was required to answer the OSG complaint. Respondent's answer merely reiterates his earlier explanation and further states:

The truth of the matter was that the DEED OF SALE WAS ALREADY Prepared when SHERIFF Dongiapon, the spouses Avellanosa and Maxima Astudillo came to my Office for the Notarization of that DEED OF SALE. What respondent did was only to ask whether the signatures are their and that the consideration was paid but did not go over the contents. All of the parties affirmed their signature and informed respondent that the consideration was paid in installments. At that time respondent never was informed that the proceeds was for the final satisfaction of Mr. Dumadag's claim. Respondent knew it only when Mr. Dumadag came to claim the money of course I have to tell the truth and I told him, Maximo Dumadag, that I have never received any money from Sheriff ROGELIO DONGIAPON and I did not even know that there was a petition for the issuance of a writ of execution that he filed because I was never asked by him. Mr. Maximo Dumadag told me that he will file a case against me if I will not give the money . . .

For the reasons that respondent's acts constitute lack of fidelity, loyalty and devotion to his client's cause, unethical practice and a violation of his lawyer's oath, the OSG recommends respondent's suspension from the practice of law for not less than five (5) years.chanroblesvirtualawlibrarychanrobles virtual law library

In the case of Licuanan vs. Melo (Adm. Case No. 2361 - February 9, 1989) a lawyer was disbarred for retaining for his personal benefit for over a one (1) year period, the amount of P5,220.00 received by him in behalf of his client, thereby compelling the latter to file a groundless collection suit which exposed said client to a damage countersuit.chanroblesvirtualawlibrarychanrobles virtual law library

While not exactly identical with the Licuanan case, herein complainant Dumadag had to file a separate civil case (No. 283 - for annulment of sale, damages and attorney's fees) to recover the amount of P4,344.00 from his previous counsel, herein respondent, Atty. Lumaya.chanroblesvirtualawlibrarychanrobles virtual law library

Under the Code of Professional Responsibility, Canon 16 -

Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client.chanroblesvirtualawlibrarychanrobles virtual law library

Rule 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.chanroblesvirtualawlibrarychanrobles virtual law library

Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

Both parties failed to apprise this Court of the final disposition of Civil Case No. 283, even as the Court took note of the RTC decision in said case where a finding was made that the land earlier sold by the Avellanosas to Dumadag is separate and distinct from the one (1) hectare portion sold by the Avellanosas to Astudillo. However, the RTC in its decision also ordered co-defendant (herein respondent) Atty. Lumaya to pay the plaintiff (herein complainant) the sum of P4,344.00 he (Atty. Lumaya) had received from Deputy Sheriff Rogelio Dongiapon for herein complainant.chanroblesvirtualawlibrarychanrobles virtual law library

Therefore, even a respondent consistently denied liability to Dumadag, his former client, the records abundantly point to his receipt of and failure to deliver the amount of P4,344.00 to his client, the herein complainant, a clear breach of the canons of professional responsibility.chanroblesvirtualawlibrarychanrobles virtual law library

ACCORDINGLY, the Court hereby SUSPENDS Atty. Ernesto Lumaya INDEFINITELY from the practice of law effective from date of his receipt of this resolution.chanroblesvirtualawlibrarychanrobles virtual law library

Let this resolution be served personally on the respondent at his given address of record and entered in his record as attorney. Let the IBP and the Court Administrator be furnished also a copy of this resolution for their information and guidance as well as for circularization to all courts in the country.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.




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