ADMIN. MATTER; PAO Clients not exempted from the payment of Sheriff’s Expenses since these are not properly considered as “Fees”; to allow free access to courts, however, PAO officials and employees are now authorized to serve subpoenas, summons, and other court processes in cases involving their clients

Re: Letter dated April 18, 2011 of Chief Public Attorney Persida Rueda-Acosta Requesting Exemption from the Payment of Sheriff’s Expenses

A.M. No. 11-10-03-O, 30 July 2013.

Sheriff’s Expenses are different from Sheriff’s Fees.

“Sheriff's expenses, however, cannot be classified as a "fee" within the purview of the exemption granted to PAO's clients under Section 6 of R.A. No. 9406. Sheriff's expenses are provided for under Section 10, Rule 141 of the Rules of Court, viz.

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Sheriff's expenses are not exacted for any service rendered by the court; they are the amount deposited to the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the sheriff, process server or other court-authorized persons in the service of summons, subpoena and other court processes that would be issued relative to the trial of the case. It is not the same as sheriff's fees under Section 10, Rule 141 of the Rules of Court, which refers to those imposed by the court for services rendered to a party incident to the proceedings before it.” (Emphasis and underscoring supplied)

PAO Lawyers now authorized to serve summons, subpoenas, and other processes on behalf of their clients or only in cases involving their clients.

“The Court, however, is not unmindful of the predicament of PAO's clients. In exempting PAO's clients from paying docket and other legal fees, R.A. No. 9406 intended to ensure that the indigents and the less privileged, who do not have the means to pay the said fees, would not be denied access to courts by reason of poverty. Indeed, requiring PAO's clients to pay sheriff's expenses, despite their exemption from the payment of docket and other legal fees, would effectively fetter their free access to the courts thereby negating the laudable intent of Congress in enacting R.A. No. 9406.

Free access to the courts and adequate legal assistance are among the fundamental rights which the Constitution extends to the less privileged. Thus, Section 11, Article III of the 1987 Constitution mandates that "[f]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty." The Constitution affords litigants — moneyed or poor — equal access to the courts; moreover, it specifically provides that poverty shall not bar any person from having access to the courts. Accordingly, laws and rules must be formulated, interpreted, and implemented pursuant to the intent and spirit of this constitutional provision.

Access to justice by all, especially by the poor, is not simply an ideal in our society. Its existence is essential in a democracy and in the rule of law. Without doubt, one of the most precious rights which must be shielded and secured is the unhampered access to the justice system by the poor, the underprivileged and the marginalized.

Having the foregoing principles in mind, the Court, heeding the constitutional mandate of ensuring free access to the courts and adequate legal assistance to the marginalized and less privileged, hereby authorizes the officials and employees of PAO to serve summons, subpoena and other court processes pursuant to Section 3, Rule 14 of the Rules of Court. The authority given herein by the Court to the officials and employees of PAO shall be limited only to cases involving their client.

Authorizing the officials and employees of PAO to serve the summons, subpoenas and other court processes in behalf of their clients would relieve the latter from the burden of paying for the sheriff's expenses despite their non-exemption from the payment thereof under Section 6 of R.A. No. 9406. The amount to be defrayed in the service of summons, subpoena and other court processes in behalf of its clients would consequently have to be taken from the operating expenses of PAO. In turn, the amount advanced by PAO as actual travel expenses may be taken from the amount recovered from the adversaries of PAO's clients as costs of suit, attorney's fees or contingent fees prior to the deposit thereof in the National Treasury.” (Emphasis and underscoring supplied)

LABOR LAW; Illegal Dismissal; While Employer has the Burden of Proving that Dismissal was for a Valid or Authorized Cause, Employee must First Establish the Fact of Dismissal from Service by Substantial Evidence

Canedo v. Kampilan Security and Detective Agency, Inc.,

G.R. No. 179326, 31 July 2013.

Employee must first prove the fact of dismissal, before Employer may be asked to prove validity thereof.

“In illegal dismissal cases, "[w]hile the employer bears the burden . . . to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service." The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.” (Emphasis and underscoring supplied)

Certification not enough proof that dismissal was effected; Floating Status not unusual for security guards employed in security agencies; Floating Status can only ripen to constructive dismissal when it goes beyond the 6-month maximum period allowed by law.

“Petitioner relies on the word "terminated" as used in the June 25, 2003 Certification issued him by respondent Arquiza and argues that the same is a clear indication that he was dismissed from service. We are, however, not persuaded. Petitioner cannot simply rely on this piece of document since the fact of dismissal must be evidenced by positive and overt acts of an employer indicating an intention to dismiss. Here, aside from this single document, petitioner proffered no other evidence showing that he was dismissed from employment. While it is true that he was not allowed to report for work after the period of his suspension expired, the same was due to NPC's request for his replacement as NPC was no longer interested in his services. And as correctly argued by respondents, petitioner from that point onward is not considered dismissed but merely on a floating status. "Such a 'floating status' is lawful and not unusual for security guards employed in security agencies as their assignments primarily depend on the contracts entered into by the agency with third parties."

Countering such status, petitioner contends that even at present, he is still not given any new duties. A floating status can ripen into constructive dismissal only when it goes beyond the six-month maximum period allowed by law. In this case, petitioner filed the Complaint for illegal dismissal even before the lapse of the six-month period. Hence, his claim of illegal dismissal lacks basis. Moreover and as aptly observed by the NLRC, it was in fact petitioner who intended to terminate his relationship with respondents through his planned retirement. This is further bolstered by his prayer in his Complaint where he sought for separation pay and not for reinstatement.

At any rate, upon a close reading of the June 25, 2003 Certification, this Court is of the opinion that petitioner was not dismissed from service. The import of the said Certification is that petitioner was assigned in NPC from November 20, 1996 up to May 7, 2003 and that on May 7, 2003, respondents terminated his assignment to NPC upon the latter's request. This is the correct interpretation based on the true intention of the parties as shown by their contemporaneous and subsequent acts and the other evidence on record as discussed above. Section 12 of Rule 130 of the Rules of Court states that in the construction and interpretation of a document, the intention of the parties must be pursued. Section 13 of the same Rule further instructs that the circumstances under which a document was made may be shown in order to ascertain the correct interpretation of a document.” (Emphasis and underscoring supplied)

CIVIL LAW; RTC Jurisdiction vis-à-vis Special Commercial Courts; SPA for Sale of Real Property Must Expressly State Authority of Agent to Sell the Land; Rule that Buyer May Rely on Title Inapplicable when Agency is Contested; Person Dealing with Agent Must Ascertain the Extent of the Agent’s Authority

Yoshizaki v. Joy Training Center of Aurora, Inc., G.R. No. 174978, 31 July 2013.

The RTC and not the SEC has jurisdiction over the case because it involves the application of the Civil Code, which are properly cognizable by courts of general jurisdiction.

  

“The CA correctly ruled that the RTC has jurisdiction over the present case. Joy Training seeks to nullify the sale of the real properties on the ground that there was no contract of agency between Joy Training and the spouses Johnson. This was beyond the ambit of the SEC's original and exclusive jurisdiction prior to the enactment of Republic Act No. 8799 which only took effect on August 3, 2000. The determination of the existence of a contract of agency and the validity of a contract of sale requires the application of the relevant provisions of the Civil Code. It is a well-settled rule that "[d]isputes concerning the application of the Civil Code are properly cognizable by courts of general jurisdiction." Indeed, no special skill requiring the SEC's technical expertise is necessary for the disposition of this issue and of this case.” (Emphasis and underscoring supplied)

SPA for the sale of real property must expressly mention a sale or express the agent’s power in clear and unmistakable terms.

  

“Article 1868 of the Civil Code defines a contract of agency as a contract whereby a person "binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter." It may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.

As a general rule, a contract of agency may be oral. However, it must be written when the law requires a specific form. Specifically, Article 1874 of the Civil Code provides that the contract of agency must be written for the validity of the sale of a piece of land or any interest therein. Otherwise, the sale shall be void. A related provision, Article 1878 of the Civil Code, states that special powers of attorney are necessary to convey real rights over immovable properties.

The special power of attorney mandated by law must be one that expressly mentions a sale or that includes a sale as a necessary ingredient of the authorized act. We unequivocably declared in Cosmic Lumber Corporation v. Court of Appeals that a special power of attorney must express the powers of the agent in clear and unmistakable language for the principal to confer the right upon an agent to sell real estate. When there is any reasonable doubt that the language so used conveys such power, no such construction shall be given the document. The purpose of the law in requiring a special power of attorney in the disposition of immovable property is to protect the interest of an unsuspecting owner from being prejudiced by the unwarranted act of another and to caution the buyer to assure himself of the specific authorization of the putative agent.” (Emphasis and underscoring supplied)

Failure to Produce Original of Documents and to show that Exceptions for the Introduction of Secondary Evidence Applies makes Evidence Inadmissible.

  

“The lower courts should not have relied on the resolution and the certification in resolving the case. The spouses Yoshizaki did not produce the original documents during trial. They also failed to show that the production of pieces of secondary evidence falls under the exceptions enumerated in Section 3, Rule 130 of the Rules of Court. Thus, the general rule — that no evidence shall be admissible other than the original document itself when the subject of inquiry is the contents of a document — applies.” (Emphasis and underscoring supplied)

Rule that person dealing with registered land need only to rely on the face of the title applies only to ownership of land and not when the fact of agency is contested; Person who deals with agent must examine and verify extent of agent’s authority.

  

“Necessarily, the absence of a contract of agency renders the contract of sale unenforceable; Joy Training effectively did not enter into a valid contract of sale with the spouses Yoshizaki. Sally cannot also claim that she was a buyer in good faith. She misapprehended the rule that persons dealing with a registered land have the legal right to rely on the face of the title and to dispense with the need to inquire further, except when the party concerned has actual knowledge of facts and circumstances that would impel a reasonably cautious man to make such inquiry. This rule applies when the ownership of a parcel of land is disputed and not when the fact of agency is contested.

At this point, we reiterate the established principle that persons dealing with an agent must ascertain not only the fact of agency, but also the nature and extent of the agent's authority.  A third person with whom the agent wishes to contract on behalf of the principal may require the presentation of the power of attorney, or the instructions as regards the agency. The basis for agency is representation and a person dealing with an agent is put upon inquiry and must discover on his own peril the authority of the agent. Thus, Sally bought the real properties at her own risk; she bears the risk of injury occasioned by her transaction with the spouses Johnson.” (Emphasis and underscoring supplied)

CRIMINAL LAW; Estafa by means of False Pretenses under Article 315, paragraph 2(a) of the Revised Penal Code

Lopez v. People, G.R. No. 199294, 31 July 2013

Use of False Pretense of Capability not covered by Article 315 paragraph 2(a)

“The Information filed against petitioner and Ragonjan alleges that they conspired to use two false pretenses on Sy to defraud him on 10 October 1996, namely, that ‘[1] Subic Island [Club] would be developed by Primelink and that [2] the latter was duly authorized to sell membership certificates.’ We find merit in petitioner's contention that the prosecution failed to prove the element of use of false pretense regarding the first allegation. Nevertheless, we find the evidence sufficient to prove the use of false pretense on the second allegation.

Allegation on the Club's Development not "False"

It is impossible to determine from the records the category of false pretense the prosecution wished the first allegation to belong. Undoubtedly, it concerns Primelink's capability to develop the Club. Use of false pretense of capability is, however, not penalized under Section 2 (a) of Article 315. The category approximating the allegation in question is false pretense of power (to develop the Club). We proceed with our analysis using such category as frame of reference.” (Emphasis and underscoring supplied)

Further proof of conspiracy not necessary because witness already testified as to the central role played by the accused in the sale of unregistered shares

"First. Petitioner was no bystander in Primelink's sale of unregistered shares. Santiago, Primelink's comptroller and drafter of the Agreement, testified as witness for petitioner that after Primelink's Board of Directors approved the sale of the unregistered Club shares, petitioner "encouraged and instructed" the sale of "many shares," no doubt to raise as much capital for the Club as possible. This was the context of Sy's purchase of a Club share from Primelink.

Petitioner attempts to distance himself from the transaction between Ragonjan and Sy by claiming that Ragonjan violated standing company policy to be "candid" to buyers by disclosing Primelink's lack of license. We find this unpersuasive. In the first place, petitioner failed to present independent proof of such company policy, putting in serious doubt the veracity of his claim. Secondly, it is improbable for Ragonjan to take it upon herself to fabricate the serious claim that Primelink was a licensed securities dealer in violation of company policy, in the process risking her employment. It is more consistent with logic and common sense to hold that Ragonjan followed company policy in giving assurances to Sy that Primelink was licensed to sell Club shares. After all, Primelink stood to attract more investments if it presented itself to the public as a licensed securities dealer. Indeed, Sy was emphatic in his claim that he bought a Club share for P0.8 million because he was "convinced that there was a license to sell."

Petitioner's direct hand in the unlicensed selling of Club shares, coupled with Ragonjan's position in Primelink's organizational and sales structure, suffices to prove petitioner's liability under the allegation of use of false pretense of qualification. With Santiago's testimony on petitioner's central role in the sale of unregistered Primelink shares, further proof of conspiracy between petitioner and Ragonjan is superfluous.” (Emphasis and underscoring supplied)

License to Sell or Capacity to Sell is implied in sales and is different from warranties

“Second. There is no merit in the argument that Ragonjan's assurance to Sy of Primelink's status as a licensed securities dealer amounts to a warranty, and thus required, under the warranty clause of the reservation agreement, to be reduced in writing. The warranty clause, which provides —

Any representation or warranty made by the agent who handled this sale not embodied herein shall not bind the company, unless reduced in writing and confirmed by the President or the Chairman of the Board. 

refers to warranties on the terms of the share sold, not to the capacity of Primelink to sell Club shares. Indeed, the fact that "the seller has the right to sell the thing at the time when ownership is to pass," is implied in sales, dispensing with the need to expressly state such in the contract. Further, the clause operates to shield Primelink from claims of violation of unwritten warranties, not its officers from criminal liability for making fraudulent representation on Primelink's authority to sell Club shares.” (Emphasis and underscoring supplied)

Misappropriation or Conversion of money or property not required in Estafa by Means of False Pretenses

“Lastly, unlike estafa under paragraph 1 (b) of Article 315 of the Code, estafa under paragraph 2 (a) of that provision does not require as an element of the crime proof that the accused misappropriated or converted the swindled money or property. All that is required is proof of pecuniary damage sustained by the complainant arising from his reliance on the fraudulent representation. The prosecution in this case discharged its evidentiary burden by presenting the receipts of the installment payments made by Sy on the purchase price for the Club share.” (Emphasis and underscoring supplied)

LEGAL ETHICS; Disbarment Proceedings: Burden of Proof Always Rests on the Complainant

"The burden of proof in disbarment and suspension proceedings always rests on the shoulders of the complainant. The Court exercises its disciplinary power only if the complainant establishes the complaint by clearly preponderant evidence that warrants the imposition of the harsh penalty. As a rule, an attorney enjoys the legal presumption that he is innocent of the charges made against him until the contrary is proved. An attorney is further presumed as an officer of the Court to have performed his duties in accordance with his oath.

In this case, complainants failed to discharge their burden of proving respondents' administrative liability. Granting that the certification of the QCCPO of the actual date of receipt of the subject NLRC decision has prima facie credence, this Court finds it is not sufficient to hold respondents administratively liable as contended by complainants.

While there is incongruity between said certification and the records of respondents' law firm as to when the subject NLRC decision was actually received by the latter, there is no clear and convincing evidence presented by complainants that respondents maliciously made it appear that they received the decision on a date ten days later than what is reflected on the records of the QCCPO. Complainants would like to convince this Court that the only logical explanation as to the discrepancy is that Calucag, a secretary under the employ of respondents, was ordered by respondents to stamp a much later date instead of the actual date of receipt for the purpose of extending by ten-day period within which to file a Motion for Reconsideration under the NLRC Rules of Procedure. Clearly, such claim is merely anchored on speculation and conjecture and not backed by any clear preponderant evidence necessary to justify the imposition of administrative penalty on a member of the Bar." (Joven and Rasing v. Attys. Cruz and Magsalin, A.C. No. 7686, 31 July 2013)