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[ G.R. No. 139848. October 25, 1999]
FEDMAN DEV'T CORP. vs. N.M. INT'L TRADING, INC., et al.
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this court dated OCT. 25 1999.
G.R. No. 139848 (Fedman Development Corporation vs. N.M. International Trading, Inc. and Court of Appeals.)
Petitioner Fedman Development Corporation assails the decision of the Court of Appeals dated March 25, 1999 as well as its resolution denying reconsideration.
The factual antecedents are as follows:
On October 6, 1989, private respondents N.M. International Trading, Inc. purchased from petitioner eight subdivision lots at P1,400.00 per square meter under a five year installments plan. Subsequent, private respondent paid in irregular intervals and as of May 11, 1994, it had an outstanding balance in the sum of P169,137.43 for the eight lots. Thereafter, respondent offered to pay its obligation, but petitioner refused to accept the payment. Even a tender of payment through a cashier's was refused on the ground that the contracts to sell had been cancelled because of respondent's failure to make good it arrearages.
Private respondent filed a complaint for consignation and specific performance before the Housing and Land Use Regulatory Board (HLURB), alleging that petitioner has no right to cancel the contracts to sell because the mode of payment of the monthly installments had been novated and also because petitioner failed to provide the subdivision with water electric facilities, and other basic amenities. Petitioner submitted its answer which prayed for the dismissal of the complaint on the ground that the contracts to sell were already cancelled on account of private respondent's failure to pay the stipulated installments. On March 21, 1996, the HLURB rendered a decision in favor of respondent, the dispositive part of which reads:
WHEREFORE, premises considered, the tender and consignation of payment made by complainant is hereby declared as having the effect of full payment of the remaining balance of the purchase price over Lots 9, 11, 13, 15, 17, 19, 21 and 23, all in Block 18 of the Fedman Subdivision, Para�aque, Metro Manila. Forthwith, respondent is hereby ordered to execute the appropriate deeds of absolute sale over the said lots in favor of complainant. Respondent is further ordered to pay complainant attorney's fees in the sum of P50,000.00
A motion for reconsideration was filed, but this was denied by the Board of Commissioners. An entry of judgment was issued on November 25, 1997 stating that the resolution dated July 14, 1997, denying the motion for reconsideration had become final and executory on July 1, 1997.
Petitioner filed a notice of appeal with the Office of the President. He also later filed a motion to recall the entry of judgment and to give due course to the appeal but the Board of Commissioners denied the motion although it modified and corrected the date of the finality of the resolution from July 1, 1997 to September 26, 1997.
Eventually, petitioner filed a petition for certiorari with the Court of Appeals which as earlier stated, dismissed the petition for lack of merit.
Petitioner contends that there was no valid receipt of the decision because his counsel on record to whom the decision was sent, had withdrawn as such. Petitioner asseverates that the service of the denied resolution on the Ferry Law Office on August 25, 1997 should not be the reckoning point for the counting of the period to appeal, According to petitioner this should start on only December 9, 1997, the date when petitioner actually received the resolution.
The Court of Appeals erred not when it ruled that there was indeed no valid withdrawal and substitution of counsel. It held that courts may not presume that the counsel of record has been substituted by a second counsel merely from the act of filing a formal appearance by the latter. Moreover, petitioner is not entirely without fault because it failed to turn over to its new counsel the withdrawal of appearance prepared by the former counsel or for its failure to personally file the same. Ergo, whatever resolution that was issued was binding and conclusive on the petitioner.
At the outset, it must be stated that while petitioner has the right to terminate its relations with its counsel and name a new counsel at any time of the proceedings, the exercise of said right is subject to compliance with prescribed requirements, lest the litigants expose themselves to whatever consequence that may beseech them for non-compliance of Section 26, Rule 138 (Substitution of Counsel). Under the Rules and existing 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 written consent cannot be produced, (4) a proof of service of notice of such motion on the attorney to be substituted in the manner required by the Rules.
Furthermore, the issue of whether or not there was indeed a valid substitution of counsel is a factual issue which this Court is not inclined to review. It is doctrinal that factual findings of the Court of Appeals are binding and conclusive and may not be reviewed on appeal.
WHEREFORE, for failure to show that respondent court committed any reversible error, the petition is denied due course.
SO ORDERED.
Very truly yours,
(Sgd.) JULIETA Y. CARREON
Clerk of Court
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