PEREZ V CA (G.R.No. 118870, March 29, 1996)

Facts:

Ray Perez is a doctor practicing in Cebu while Nerissa, his wife, (petitioner) is a registered nurse.  After six miscarriages, two operations and a high-risk pregnancy, Nerissa finally gave birth to Ray Perez II in New York on July 20, 1992. Ray stayed with her in the U.S. twice and took care of her when she became pregnant.  Unlike his wife, however, he had only a tourist visa and was not employed.

On January 17, 1993, the couple and their baby arrived in Cebu.  After a few weeks, only Nerissa returned to the U.S.  She alleged that they came home only for a five-week vacation and that they all had round-trip tickets.  However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby.  According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working.  She was supposed to come back immediately after winding up her affairs there.

When Nerissa came home a few days before Ray II’s first birthday, the couple was no longer on good terms.  They had quarrels. Nerissa did not want to live near her in-laws and rely solely on her husband’s meager income of P5,000.00. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession.  He maintained that it would not be difficult to live here since they have their own home and a car. Despite mediation by the priest, the couple failed to reconcile.

Nerissa filed a petition to surrender the custody of their son to her.

The trial court issued an Order awarding custody to Nerissa citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Upon appeal by Ray Perez, the Court of Appeals reversed the trial court’s order and held that granting custody to the boy’s father would be for the child’s best interest and welfare.

Issue:

Who should have rightful custody of a child?

Held:

Nerissa. Aside from Article 213 of the Family Code, the Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

“SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.” (Italics supplied)

The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise.  The use of the word “shall” in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character.

The general rule that a child under seven years of age shall not be separated from his mother finds its reason in the basic need of a child for his mother’s loving care. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.

It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In the case, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Nerissa’s present work schedule is not so unmanageable as to deprive her of quality time with her son.  Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Also, delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids under the eagle eyes of the mother. 

Although Ray’s is a general practitioner, the records show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. He cannot possibly give the love and care that a mother gives to his child.

Brotherhood Labor Unity Movement of the Phil. v. Zamora

Facts:

The petitioners are workers who have been employed at the San Miguel Parola Glass Factory as “pahinantes” or “kargadors” for almost seven years. They worked exclusively at the SMC plant, never having been assigned to other companies or departments of San Miguel Corp, even when the volume of work was at its minimum. Their work was neither regular nor continuous, depending on the volume of bottles to be loaded and unloaded, as well as the business activity of the company. However, work exceeded the eight-hour day and sometimes, necessitated work on Sundays and holidays. -for this, they were neither paid overtime nor compensation.

Sometime in 1969, the workers organized and affiliated themselves with Brotherhood Labor Unity Movement (BLUM). They wanted to be paid to overtime and holiday pay. They pressed the SMC management to hear their grievances. BLUM filed a notice of strike with the Bureau of Labor Relations in connection with the dismissal of some of its members. San Miguel refused to bargain with the union alleging that the workers are not their employees but the employees of an independent labor contracting firm, Guaranteed Labor Contractor.

The workers were then dismissed from their jobs and denied entrance to the glass factory despite their regularly reporting for work. A complaint was filed for illegal dismissal and unfair labor practices.

Issue:

Whether or not there was employer-employee (ER-EE)relationship between the workers and San Miguel Corp.

Held:

YES. In determining if there is an existence of the (ER-EE) relationship, the four-fold test was used by the Supreme Court.  These are:

·         The selection and engagement of the employee

·         Payment of wages

·         Power of dismissal

·         Control Test- the employer’s power to control the employee with respect to the means and methods by which work is to be accomplished

In the case, the records fail to show that San Miguel entered into mere oral agreements of employment with the workers. Considering the length of time that the petitioners have worked with the company, there is justification to conclude that they were engaged to perform activities necessary in the usual business or trade. Despite past shutdowns of the glass plant, the workers promptly returned to their jobs. The term of the petitioner’s employment appears indefinite and the continuity and habituality of the petitioner’s work bolsters the claim of an employee status.

As for the payment of the workers’ wages, the contention that the independent contractors were paid a lump sum representing only the salaries the workers where entitled to have no merit. The amount paid by San Miguel to the contracting firm is no business expense or capital outlay of the latter. What the contractor receives is a percentage from the total earnings of all the workers plus an additional amount from the earnings of each individual worker.

The power of dismissal by the employer was evident when the petitioners had already been refused entry to the premises. It is apparent that the closure of the warehouse was a ploy to get rid of the petitioners, who were then agitating the company for reforms and benefits.

The inter-office memoranda submitted in evidence prove the company’s control over the workers. That San Miguel has the power to recommend penalties or dismissal is the strongest indication of the company’s right of control over the workers as direct employer.

*SC ordered San Miguel to reinstate the petitioners with 3 years backwages.

BIR Ruling 145-98

Facts:

A lot was registered in the name of the Posadas spouses (jointly titled in their names). Juan Posadas (husband) died in an aircraft accident and an agreement was executed by Maria Elena Posadas (wife) that the designated lots shall be exclusively registered in the name of one party only in exchange for the exclusive co-ownership of other lots by the other co-owner. Maria Elena, who was assigned the property, sold the lot to Noel Espina where title to the property should be transferred in his name upon payment of the appropriate taxes.

Issue:

Whether the transaction of Elena and Noel is exempt from capital gains tax.

Held:

The agreement executed by Elena and the administratrix of Juan Posadas in effect partitioned the properties transferring the co-ownership by designating the said properties to each of the said owners. Also, the transfer of title from the co-owners is not a barter, exchange or disposition of realty that would warrant the imposition of capital gains tax.

The dissolution of the co-ownership is not subject to capital gains tax however, that portion of the properties belonging to the deceased owner (in this case Juan) shall be subject to estate tax.

Dison v Posadas

Facts:

Don Felix Dison, before his death, made a gift inter vivos in favor of plaintiff Luis Dison. Luis was the legitimate and only child of Felix. The Collector of Internal Revenue, Juan Posadas Jr. taxed him. Luis filed for the recovery of an inheritance tax in the sum of P2,808.73 paid under protest. He alleged in his complaint that the tax is illegal because he received the property from his father before his death by a deed of gift inter vivos which was duly accepted and registered before the death of his father. He contends that he received and held the property by a consummated gift and that Act No. 2601 being the inheritance tax statute, does not tax gifts.

Issue:

Whether or not Dison should pay inheritance tax.

Held:

Yes. Dison should pay tax. Section 1540 of the Administrative Code is applicable. It states that:

‘Addition of Gifts and Advances- After the aforementioned deductions have been made, there shall be added to the resulting amount the value of all gifts/advances made by the predecessor to any of those, who, after his death, shall prove to be his heirs, devisees, legatees or donees mortis causa.’

That Dison occupies the status of heir to his deceased father cannot be questioned. The conveyance is deemed to be an advancement upon the inheritance which the donee, as the sole and forced heir of the donor, would be entitled to receive upon the death of the donor. The tax has been properly assessed by the CIR.

As regards Act 2601, it is not applicable since the Act does not make any reference to a tax on gifts.

Halili v CIR (136 SCRA 112)

Facts:

The cases involve disputes regarding claims for overtime of more than five hundred bus drivers and conductors of Halili Transit. Litigation initially commenced with the filing of a complaint for overtime with the CIR. The disputes were eventually settled when the contending parties reached an Agreement where the Administratrix would transfer to the employees the title to a tract of land in Caloocan, Rizal. The parcel of land was eventually registered in the name of the Union.

The Union, through Atty. Benjamin C. Pineda, filed an urgent motion with the Ministry of Labor and Employment (MOLE) requesting for authority to sell and dispose of the property. Union President Amado Lopez, in a letter, informed J.C. Espinas and Associates that the general membership of the said Union had authorized a 20% contingent fee for the law firm based on whatever amount would be awarded the Union.

Atty. Jose C. Espinas, (the original counsel) established the award of 897 workers' claim. When Atty. Pineda appeared for the Union in these cases, still an associate of the law firm, his appearance carried the firm name B.C. Pineda and Associates," giving the impression that he was the principal lawyer in these cases.

Atty. Pineda joined the law firm of Atty. Espinas in 1965 when these cases were pending resolution. He always held office in the firm's place at Puyat Building, except in 1966 to 1967 when he transferred to the Lakas ng Manggagawa Offices. During this one-year stint at the latter office, Atty. Pineda continued handling the case with the arrangement that he would report the developments to the Espinas firm. When he rejoined the law firm in 1968, he continued working on these cases and using the Puyat Building office as his address in the pleadings.

When Atty. Pineda rejoined the Espinas firm in 1968, he did not reveal to his partners (he was made the most senior partner) that he had a retainer's contract. He stayed with the law firm until 1974 and still did not divulge the 1967 retainer's contract. Only the officers of the Union knew of the contract.

The alleged retainer's contract between Atty. Pineda and the Union appears anomalous and even illegal as well as unethical considering that-

1. The contract was executed only between Atty. Pineda and the officers of the Union chosen by about 125 members only. It was not a contract with the general membership.

2. The contingent fee of 30% for those who were still working with Halili Transit and the 45% fee for those who were no longer working worked to the prejudice of the latter group who should and were entitled to more benefits. Thus, too, when the alleged retainer's contract was executed in 1967, the Halili Transit had already stopped operations in Metro Manila. By then, Atty. Pineda knew that all the workers would be out of work which would mean that the 45% contingent fee would apply to all.

3. The contract which retroactively took effect on January 1, 1966, was executed when Atty. Espinas was still handling the appeal of Halili Transit in the main case before the Supreme Court.

4. When Atty. Pineda filed his motion for approval of his attorney's lien with Arbiter Valenzuela on February 8, 1983, he did not attach the retainer's contract.

5. The retainer's contract was not even notarized.

A prospective buyer, the Manila Memorial Park Cemetery, Inc. objected in view of PD 1529 which requires no less than an order from a court of competent jurisdiction as authority to sell property in trust.

Atty. Pineda, without authority from the Supreme Court but relying on the earlier authority given him by the Ministry of Labor, filed another urgent motion, praying that the Union be authorized to sell the lot. The sale was finally consummated, resulting in the execution of an escrow agreement.

When Atty. Jose C. Espinas (herein movant and alleged original counsel for the Union) learned of the sale and apportionment of the proceeds from past Union president Amado Lopez, he requested Labor Arbiter Raymundo Valenzuela to allow him to look into the records of the case. The latter, however, told him that the records of the case were missing. Thereupon, Atty. Espinas requested Director Pascual Reyes of the NLRC to locate the records.

Issue:

a.Whether or not Atty. Pineda and Arbiter Valenzuela should be held in contempt.

b. Whether or not Atty. Pineda should be disbarred.

Held:

a. YES. Contempt of court is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation.

The power to punish for contempt is inherent in all courts and is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the court, and consequently, to the due administration of justice.

In the Slade Perkins case, "the exercise of the power to punish contempt has a twofold aspect, namely (1) the proper punishment of the guilty party for his disrespect to the court or its order; and (2) to compel his performance of some act or duty required of him by the court which he refuses to perform. Due to this twofold aspect of the exercise of the power to punish them, contempts are classified as civil or criminal.

A civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein.

A criminal contempt, is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act.

b. YES. Under Section 27 of Rule 138 of the Revised Rules of Court which provides:

Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds.—A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corrupt or willfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

The Court may suspend or disbar a lawyer for any conduct on his part showing his unfitness for the confidence and trust which characterize the attorney and client relations, and the practice of law before the courts, or showing such a lack of personal honesty or of good moral character as to render him unworthy of public confidence.

In the case, the expeditious manner by which Arbiter Valenzuela granted Atty. Pineda's motion for such authority to sell the property make the entire transaction dubious and irregular.

Significantly Atty. Pineda's act of filing a motion praying for authority to sell was by itself an admission on his part that he did not possess the authority to sell the property. He could not and did not even wait for valid authority but instead previously obtained the same from the labor arbiter whom he knew was not empowered to so authorize.

The 45% attorney's lien on the award of those union members who were no longer working and the 30% lien on the benefits of those who were still working as provided for in the alleged retainer's contract are also very exorbitant and unconscionable.

*Atty. Pineda is found guilty of indirect contempt of court for which he is sentenced to imprisonment and directed to show cause why he should not be disbarred.

Nunez v Ricafort (382 SCRA 381)

Facts:

An administrative complaint was by Soledad Nuñez, a septuagenarian represented by her attorney-in-fact Ananias B. Co, Jr., seeking the disbarment of Atty. Romulo Ricafort on the ground of grave misconduct.

Sometime in October 1982, Soledad authorized Atty. Ricafort to sell her two parcels of land located in Legazpi City for P40,000. She agreed to the lawyer 10% of the price as commission. Atty. Ricafort succeeded in selling the lots, but despite Soledad’s repeated demands, he did not turn over the proceeds of the sale. This forced Soledad to file an action for a sum of money before the RTC, Quezon City.

The court rendered its decision ordering the Atty. to pay Soledad the sum of P16,000 as principal obligation, with at the legal rate from the date of the commencement of the action.

An appeal to the CA was made. However, the appeal was dismissed for failure to pay the required docket fee within the reglementary period despite notice.

Soledad filed a motion for the issuance of an alias writ of execution. But it appears that only a partial satisfaction of the P16,000 judgment was made, leaving P13,800 unsatisfied. In payment for the latter, Atty. issued four postdated checks but was dishonored because the account against which they were drawn was closed.

Hence, Soledad was forced to file four criminal complaints for violation of B.P. Blg. 22 before the MTC, Quezon City.

In a joint affidavit, Atty. Ricafort admitted having drawn and issued said four postdated checks in favor of Soledad. Allegedly believing in good faith that said checks had already been encashed by Soledad, he subsequently closed his checking account in China Banking Corporation, Legazpi City, from which said four checks were drawn. He was not notified that the checks were dishonored. Had he been notified, he would have made the necessary arrangements with the bank.

The court required Atty. to comment on the complaint. But he never did despite the favorable action on his three motions for extension of time to file the comment. His failure to do so compelled Soledad to file a motion to cite Atty. in contempt on the ground that his strategy to file piecemeal motions for extension of time to submit the comment “smacks of a delaying tactic scheme that is unworthy of a member of the bar and a law dean.”

The IBP findings show that the Atty. had no intention to “honor” the money judgment against him. It recommended that Atty. be declared “guilty of misconduct in his dealings with complainant” and be suspended from the practice of law for at least one year and pay the amount of the checks issued to the complainant.

Issue:

Whether or not Atty. Romulo Ricafort is guilty of grave misconduct in his dealings with complainant.

Held:

YES.  There is a blatant violation of Rule 1:01 of Canon 1 of the Code of Professional Responsibility which provides:

A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct.

By violating Rule 1:01 of Canon 1 of the Code of Professional Responsibility, Atty. diminished public confidence in the law and the lawyers. Instead of promoting such confidence and respect, he miserably failed to live up to the standards of the legal profession.

His act of issuing bad checks in satisfaction of the alias writ of execution for money judgment rendered by the trial court was a clear attempt to defeat the ends of justice. His failure to make good the checks despite demands and the criminal cases for violation of B.P. Blg. 22 showed his continued defiance of judicial processes, which he, as an officer of the court, was under continuing duty to uphold.

To further demonstrate his very low regard for the courts and judicial processes, he even had the temerity of making a mockery of the court’s generosity to him. We granted his three motions for extension of time to file his comment on the complaint in this case. Yet, not only did he fail to file the comment, he as well did not even bother to explain such failure notwithstanding our resolution declaring him as having waived the filing of the comment. To the SC, Atty. openly showed a high degree of irresponsibility amounting to willful disobedience to its lawful orders.

Atty. Ricafort then knowingly and willfully violated Rules 12.04 and 12:03 of Canon 12 of the Code of Professional Responsibility stating that:

Lawyers should avoid any action that would unduly delay a case, impede the execution of a judgment or misuse court processes; and that lawyers, after obtaining extensions of time to file pleadings, memoranda or briefs, should not let the period lapse without submitting the same or offering an explanation for their failure to do so.

The SC indefinitely suspended Atty. Ricafort from the practice of law and directed to pay Soledad P13,800.

Dumo v Espinas

Facts:

Spouses Dumo are the owners-possessors of a parcel of sandy beach resort in Bauang, La Union.  Severa J. Espinas filed a "Quieting of Title and/or Ownership and Possession against spouses Sandy and Presnida Saldana, subject matter of the case being the same resort.

Although a decision has been rendered against the defendants in the case against spouses Saldana, the the same was not enforced.

Disgruntled with the refusal of the sheriff to put them in possession over the questioned real property, and in open defiance with the official action taken by the sheriff, all defendants acting for the interest of Espinas took it upon themselves, employing force, intimidation, and threat, to enter the property.

Despite protests made by Spouses Dumo, who were there then present and visibly outnumbered by defendants and their agents who were armed with sticks, bolos, hammers, and other deadly weapons, successfully drove out plaintiffs, and took over the premises

It was alleged that the defendants were boasting aloud that they were under instructions by the "judge" to do just that – to forcibly enter and take over the premises. While inside the premises, they demolished and totally tore down all the improvements.

Spouses Dumo prayed for the payment of actual, moral and exemplary damages. The MTC rendered judgment holding that petitioners were able to prove their right of possession over the subject property.

Respondents appealed the case to the RTC of Bauang, La Union. The RTC reversed and set aside the Decision of the MTC. It also ruled that as regards damages, the only damage that can be recovered is the fair rental value or the reasonable compensation for the use and occupation of the leased property.

Spouses Dumo filed a petition for review with the CA. The CA held that the MTC correctly found that the petitioners were in possession of the subject land and agreed with the ruling of the RTC that in forcible entry and unlawful detainer cases, the only damage that can be recovered is the fair rental value or the reasonable compensation for the use and occupation of the property concerned.

Issue:

Whether or not the the CA erred in holding that the only damage that can be recovered is the fair rental value for use of the property.

Held:

No. The CA is correct. There is no basis for the MTC to award actual, moral and exemplary damages in view of the settled rule that in ejectment cases, the only damage that can be recovered is the fair rental value or the reasonable compensation for the use and occupation of the property.

The reason for this is that in such cases, the only issue raised in ejectment cases is that of rightful possession; hence, the damages which could be recovered are those which the plaintiff could have sustained as a mere possessor, or those caused by the loss of the use and occupation of the property, and not the damages which he may have suffered but which have no direct relation to his loss of material possession.

Although the MTC’s order for the reimbursement to petitioners of their alleged lost earnings over beach resort could have been considered as compensation for their loss of the use and occupation of the property while it was in the possession of the respondents, records do not show any evidence to sustain the same.