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[A.M. No. OCA-IPI-99-781-RTJ.November 17, 1999]

ATTY. JACINTO vs. JUDGE HERRERA

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 17 1999.

A.M. No. OCA-IPI-99-781-RTJ(Atty. Ernesto C. Jacinto vs. Judge Oscar C. Herrera, Jr.)

This is a complaint filed by Atty. Ernesto C. Jacinto charging respondent Judge Oscar C. Herrera, Jr. of the Regional Trial Court, Branch 20, Malolos, Bulacan, with gross ignorance of the law.

Complainant was the counsel of defendant spouses in Civil Case No. 1123-M-98, entitled "Rosita S. Custodio vs. Spouses Felipe Bacual and Lolita Maghinang," for partition of a parcel of land, pending before respondents sala. It appears from the records that plaintiff Custodio's action for partition is founded on her claim that she purchased from defendant spouses a portion of a parcel of land owned by the latter as evidenced by a deed of sale in her favor. The deed of sale, denominated as "Kasulatan Ng Bilihang Tuluyan Nang Bahaging Hindi Pa Nahahati Nang Isang Lagay na Lupa," was allegedly executed on July 17, 1989.

In their answer, defendant spouses denied that they had sold the land to plaintiff and averred that the deed of sale had been fabricated by plaintiff to defraud them of their land. After pre-trial was terminated and the case was set for trial on the merits, defendant spouses filed with the Office of the Provincial Prosecutor of Bulacan a criminal complaint against the plaintiff for estafa, falsification of a public document, estafa through falsification of a public document, and use of a falsified document. On account of the filing of the criminal case, herein complainant moved for a suspension of the proceedings in the civil case, contending that the criminal action instituted in the fiscal's office should be given priority.

At the scheduled hearing of the civil case on June 22, 1999 for the presentation of plaintiff's evidence, respondent judge granted complainant's motion for the cancellation of the hearing and reset the same on July 21, 1999, or one (1) month thereafter, to enable respondent judge to resolve the motion to suspend the proceedings in the case, in an order, dated July 16, 1999, respondent denied the said motion on the ground that contrary to complainant's allegation that the civil action should be suspended in view of the filing of the criminal case, it is in fact the criminal action that should be suspended "because the issue in this civil suit pertaining to the authenticity of the deed of sale is a prejudicial question insofar as the criminal action is concerned."

At the hearing held on July 21, 1999, complainant manifested before respondent judge that he has not yet received the order resolving his motion to suspend proceedings. He prayed that the case be reset pending the resolution of his motion. When respondent judge informed him that the motion had already been denied in the order, dated July 16, 1999, complainant pointed out that he had fifteen (15) days from receipt of the order of denial within which to file a motion for reconsideration. Complainant then reiterated his motion for the resetting of the hearing to enable him to obtain a copy of the order and to file a motion for reconsideration of the same. However, respondent judge denied this motion in open court. Thereupon, complainant led the defendants in walking out of the courtroom, manifesting that they will not participate in the proceedings of the case. Respondent then allowed plaintiff's counsel to present evidence ex parte.

Complainant contends that respondent judge's refusal to suspend the proceedings before him and to reset the hearing after July 21, 1999, instead of allowing plaintiff to present evidence ex parte, constitute violations of basic and elementary rules of procedure, clearly demonstrating respondent's ignorance of the law.

In his comment, respondent judge denies the allegations against him. He states that at the hearing on July 21, 1999 complainant insisted that the hearing be cancelled so that he could file a motion for reconsideration of- the order denying his motion to suspend the proceedings in the case. He avers that he denied complainant's motion to cancel the hearing because he found no valid reason to further delay the proceedings, and he informed complainant that he can file a motion for reconsideration if he so desired but the hearing must proceed. He further states that because complainant had walked out of the hearing, he allowed the plaintiff to present her evidence ex parte. He claims, however, that although complainant said that he would no longer participate in the hearing of the case, he nevertheless directed plaintiff's counsel to furnish a copy of his formal offer of evidence to complainant who was given time to comment thereon, and that, in addition, he set the case for hearing on another date to enable the complainant to present his defense.

We find respondent judge's contentions to be meritorious. As the Office of the Court Administrator states in its report in this case:

The present administrative complaint is premised on the Order issued by respondent during the July 21, 1999 hearing of Civil Case No. 1123-M-98, whereby he (1) denied the oral motion of complainant, as counsel for the defendants, for the cancellation of the hearing and (2) allowed the plaintiff to present evidence ex-parte after complainant led the defendants in walking out of the courtroom. The issuance of said order was, in turn, prompted by complainant's insistence that the hearing be cancelled anew and reset to another date to give way to his filing of a motion for reconsideration of respondent's order of denial of the "Motion to Suspend Proceedings." Respondent saw no reason to cancel the hearing on the ground merely that counsel is going to file motion for reconsideration of respondent's order.

The undersigned finds for respondent.

Certainly, if complainant desires to move for a reconsideration of the court's order, he may do so without need of canceling the proceedings. The resetting of the hearing will serve no useful purpose and will only further delay the trial of the case. Indeed, there is absolutely no reason why the hearing should be cancelled only because complainant would like to file a motion for reconsideration to contest the denial of the motion for suspension. Such procedure is not sanctioned by the Rules of Court. Nowhere in the Rules is it provided that the filing of a motion for reconsideration calls for the suspension of the hearing to give way to the submission of such motion.

Counsel, in his complaint, contends that respondent's refusal to cancel the proceedings is in violation of the "basic and elementary rules of procedure," making him guilty of ignorance of the law. However, counsel failed to cite the specific provisions of law which respondent has allegedly violated when he denied counsel's oral motion to cancel the hearing. In fact, as pointed out above, the Rules do not authorize the procedure being insisted upon by complainant.

Anent respondent's act of allowing the plaintiff to present evidence ex parte, which is the second basis for complainant's charge of gross ignorance of the law, again, the undersigned finds for respondent. The same does not amount to a denial of due process. Complainant and his clients had the opportunity to participate in the proceedings but they chose not to. Complainant categorically stated that they will not participate in the proceedings of the case and staged a walkout. Respondent treated the same as a waiver of their right to cross-examine the plaintiff - and rightly so. Complainant's remarks and actuations under the circumstances were totally uncalled for. Complainant should be reminded, at this point, that as a member of the Bar, he has the basic duty "to observe and maintain the respect due to the courts of justice and judicial officers;" to conduct himself with "all good fidelity to the court;" and to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.

In any case, the records of this case disclose that after the ex-parte presentation of evidence, respondent Judge issued an Order dated July 21, 1999, giving the plaintiff ten (10) days within which to file a formal offer of evidence and directing plaintiff's counsel to furnish herein complainant a copy of the formal offer of evidence in order to give the latter the opportunity to file a comment or objection thereto. Also, the case was set for hearing on another date to enable the defendants to present their evidence. Hence, complainant cannot now claim that they have been denied due process.

In view of the foregoing, complainant's charge of gross ignorance of the law cannot be countenanced.

WHEREFORE, the instant complaint is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Acting Div. Clerk of Court

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