THIRD DIVISION
[A.C. No. 9844. February 5, 2018.]
JERKIE P. GENEROSO, complainant,vs. ATTY. CRESENCIO N. PALPAGAN, JR., respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedFebruary 5, 2018, which reads as follows:
"A.C. No. 9844 (Jerkie P. Generoso v. Atty. Cresencio N. Palpagan, Jr.). The Court resolves to NOTE:
(1) the Notice of Resolution No. XXII-2016-388 dated August 26, 2016 of the Integrated Bar of the Philippines (IBP) Board of Governors (BOG) adopting the findings of fact and recommendation of the investigating commissioner, dismissing the complaint against respondent; and
(2) the letter dated June 5, 2017 of the IBP transmitting the documents pertaining to this case.
Complainant Jerkie P. Generoso (complainant) filed a Complaint-Affidavit 1 for disbarment against respondent Atty. Cresencio N. Palpagan, Jr. (respondent), before the Court charging him with violation of Section 27, Rule 138 of the Rules of Court and Canon 16.01 of the Code of Professional Responsibility.
The complaint-affidavit alleged:
8. That sometime [in] the first week of September 2005, Engr. Christopher Palpagan, the brother of Atty. Palpagan[,] gave me the cell number of my uncle Mr. Leoncio Corpus who is in charge of our Civil Case in Dumaguete City versus [Siliman] University regarding the ownership of some portion of the lots of [Siliman] University;
9. That also during this meeting, I told Engr. Christopher Palpagan, the brother of Atty. Palpagan[,] of my incoming realty development project at Quiot, Pardo, Cebu City; [a]nd later on I know that Engr. Christopher Palpagan relayed to Atty. Cresencio "Cres" Palpagan of my incoming realty project;
10. That after three (3) days from the meeting with Engr. Christopher Palpagan, Atty. Palpagan called me and asked about my incoming realty project;
11. That on 15 September 2005, my uncle Mr. Leoncio Corpus went and met me in Cebu City and told me about Atty. Palpagan;
12. That at that instant moment, my confidence and trust on Atty. Palpagan grew stronger, so I showed him the tax declaration of the lot at Quiot, Pardo, Cebu City, x x x;
13. That Atty. Palpagan upon perusal of the documents told me to secure and get clean pages of the tax declaration which should be certified true copies;
14. That after one (1) week from the request of Atty. Palpagan, I got hold of the certified true copies of the tax declaration of the lot in Quiot, Pardo, Cebu City and we met at his office in Aulga Building, Banawa, Cebu City;
15. That during our meeting, Atty. Palpagan proposed that he wanted to [meet] with the lot owner, Mr. Froilan Rigor[,] and that he will explain to him the situation of the lot;
16. That after three (3) days, we went to the lot owner, Mr. Froilan Rigor at his house in Urgello Road, Cebu City together with Mr. Allan Modina, a realty agent but we were not able to [meet] Mr. Rigor as he was out of the house;
17. That on the next day[,] at around 8:30 in the morning, Mr. Froilan Rigor went to the office of Atty. Cresencio "Cres" N. Palpagan at the Aulga Building, Banawa, Cebu City and a meeting was held. In that meeting, Atty. Palpagan presented to Mr. Rigor the need to secure the title of the property before the development can be done. He offered his services to process the title and likewise he offered the services of his brother, Engr. Christopher Palpagan as the surveyor. Mr. Rigor agreed to the development of his property into a housing subdivision, but asked for an initial payment of P200,000.00 from me. However, Atty. Palpagan convinced Mr. Rigor to execute a Special Power of Attorney to him so he could process the title and he will be the one to give P500,000.00 as initial payment. Atty. Palpagan then hurriedly made an SPA, a copy is hereto attached as Annex "B";
18. That Mr. Rigor signed the SPA, I was asked to accompany Atty. Palpagan to Cebu City Hall to secure residence certificates for himself and that of Mr. Rigor, then he had SPA notarized by a certain Rolando Grapa. After which, Atty. Palpagan offered me and Mr. Modina a lunch. While taking our lunch, he told me that his friend who is the manager of a bank was just waiting for such document in order that the loan of half million can be released to Mr. Rigor, and another half million to me also. He also mentioned about another half million for the agent and another half million for himself also;
19. That sometime in November 18, 2005, at around 11:00 in the morning, Atty. Palpagan made a follow-up of the amount of P200,000.00. He told me that said amount instead of giving it to Mr. Rigor, the same should be used for the titling of the property, anyway according to him, he will just be the one to give P500,000.00 to Mr. Rigor once the title is released within 5 months, he will return the money to me. Trusting of the representations made by Atty. Palpagan, a copy of said acknowledgement receipt is attached and marked as Annex "C";
20. That I was surprised of the acknowledgement receipt which states that it is a joint venture project and asked Atty. Palpagan for the joint venture agreement;
21. That Atty. Cresencio "Cres" Palpagan just replied that "dali ran a unya ra kung ma release ang title."
22. That on the same date at around 3:00 in the afternoon, I met Mr. Froilan at the SM City and gave him P20,000.00 cash;
23. That upon seeing the acknowledgement receipt of P200,000.00 by Atty. Palpagan, Mr. Rigor asked me about the joint venture [and] why Atty. Palpagan was included;
24. That I explained to Mr. Rigor that the sharing scheme which we already discussed is still the same and regarding Atty. Palpagan's entry, his share will be taken [out] from my share;
25. That on January 22, 2006 at around 2 p.m., my daughter, Easther Faith H. Generoso, was admitted at Chong Hua Hospital for dog bites, x x x;
26. That I immediately contacted Atty. Palpagan through text message and [called] him through his cell phone to [ask] for a Php50,000.00 for medication of my daughter as I have no money at that time but there was no response from him;
27. That I went to his office at Aulga Bldg., Duterte St., Banawa, Cebu City and asked for help from his sister to contact Atty. Palpagan but still he cannot be contacted or reached through his cell phone;
28. That I also tried to borrow money from his sister, Wilma N. Palpagan[,] to pay for the deposit at the hospital but she also refused to lend me money;
29. That on January 23, 2006, Atty. Palpagan replied to my text message regarding my request for a Php50,000.00 but declined to give money because according to him he used the money to finance the [Siliman] Case which he is the legal counsel;
30. That on the same date, I called him through the cell phone and we were able to talked [sic] with each other;
31. That I again asked for my money which he declined and immediately I also asked to get my vehicle, multi cab as my collateral to the hospital deposit and bills, x x x;
32. That Atty. Palpagan replied that "Dili na mahimo (referring to the multi cab) kay wa pa na matransfer sa imo ngalan ang rehistro;"
33. That after three (3) days, my eldest daughter, Jerria Mae Dawn H. Generoso, was rushed to the Vicente Sotto Memorial Hospital and was transferred to Cebu City Medical Center (CCMC) for ruptured appendicitis, x x x;
34. That I tried to contact again Atty. Palpagan to ask for money but he still cannot be contacted and every day I contacted Atty. Palpagan through his cell phone but he will not answer it even though it keeps on ringing;
35. That since five months had already lapsed since I gave to Atty. Palpagan, the amount of P200,000.00 and no title of the property of Mr. Rigor was processed and delivered to Mr. Rigor and me, I went to the Barangay Hall of Barangay Guadalupe, Cebu City and filed a case against Atty. Palpagan for him to return the money.
36. That [on] March 7, 2006, Mr. Froilan D. Rigor, the owner of the lot which is the site for our joint venture executed a revocation of the special power of attorney of Atty. Cresencio "Cres" N. Palpagan for violating the terms and conditions of the public instrument, x x x;
37. That on 27 April 2006, I sent a demand letter through my lawyer for the return of the Php200,000.00 which was received by Christopher N. Palpagan, his brother, x x x;
38. That I filed a criminal case of estafa before the Office of the City Prosecutor, unfortunately it was dismissed for lack of probable cause on October 23, 2006, x x x;
39. Feeling aggrieved and having sleepless nights thinking of injustice and trickery done by ATTY. PALPAGAN, who stole my hard earned money for my family, I was constrained to file this administrative charge against this corrupt lawyer who has no place in the bar. 2
In his Comment, 3 respondent averred that the complaint is a rehash of the one filed by complainant before the Office of the City Prosecutor of Cebu on August 17, 2006 which was dismissed for lack of probable cause. He stated that complainant went to his office showing a certified true copy of the tax declaration of a lot in the name of Froilan Rigor (Rigor). A meeting was then set where Rigor, complainant and respondent agreed that a joint venture or informal partnership would be created among themselves for the development of Rigor's lot into a residential subdivision.
In the joint venture, it was agreed that complainant would be the financier of all the financial requirements needed to secure the certificates of title of the properties, while Rigor would contribute his 16 hectares unregistered land and respondent will be an industrial partner who would contribute his legal and accounting expertise. The partners decided to start the project by securing titles for the unregistered land so it could be subdivided into residential subdivisions and the title could be offered as collateral to finance the development of the property. The parties further agreed that complainant would deliver the initial amount of P200,000.00 to respondent for the titling of the property and another P20,000.00 for other expenses. Respondent then established a business office for the project and caused the survey of the lot through his brother, Engr. Christopher Palpagan which amounted to about P200,000.00. He likewise incurred the amount of P186,500.00 for the processing of the land patent and certificates of title of the land.
According to respondent, it was only on November 18, 2005 that he received the amount of P200,000.00 from complainant. He also informed complainant to raise the amount of P160,000.00 for the unpaid taxes but the latter failed to do so.
Respondent and Rigor realized that complainant was not financially capable to meet his promised contribution to the joint project, thus, Rigor executed the revocation of the special power of attorney.
After the complainant filed his reply, the Court referred the complaint to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 4
Thereafter, the IBP-Commission on Bar Discipline (CBD) conducted a mandatory conference and hearings.
In its Report and Recommendation 5 dated March 15, 2016, the IBP-CBD recommended the dismissal of the complaint for lack of sufficient basis. It found that there was no violation of the Code of Professional Responsibility as there was no attorney-client relationship between the complainant and respondent; and that the primary objective of the complainant in filing the complaint was to recover the amount of P200,000.00, which is within the jurisdiction of the court.
In its Resolution No. XXI-2016-388 6 dated August 26, 2016, the IBP Board of Governors (IBP-Board) adopted and approved the report and recommendation of the IBP-CBD, as follows:
RESOLVED to ADOPT the findings of fact and recommendation of the Investigating Commissioner dismissing the complaint. 7
Ruling of the Court
The Court accepts and adopts the recommendation of the IBP Board.
In disbarment proceedings, the burden of proof is upon the complainant and the Court will exercise its disciplinary power only if the former establishes its case by clear, convincing, and satisfactory evidence. 8 If the complainant fails to meet the required standard, this Court shall not hesitate to dismiss any disbarment proceedings against any lawyer. After all, the power to disbar must be exercised with great caution, and may be imposed only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar. 9
As aptly found by the IBP-CBD, thus:
In this case, the objective of the complainant is to recover the amount of P200,000.00 as reflected in his demand letter and position paper. Clearly, the real intention is the enforcement and protection of private or civil rights. Resolving such issue would demand the evaluation of the purpose and intention of the parties in entering the joint venture agreement. Further, the same requires the assessment on the corresponding duties and obligations of the partners to the joint venture and to their co-partners and their corresponding liabilities as well and the determination whether complainant is entitled of a legal right to be enforced or protected. The evaluation and assessment of the aforementioned are not the function of the Commission on Bar Discipline as the same is civil in nature and within the ambit of the civil courts. 10
WHEREFORE, the complaint against Atty. Cresencio N. Palpagan, Jr. is DISMISSED. (Martires, J., on official business.)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 1-4.
2.Id. at 1-4.
3.Id. at 26-31.
4. Resolution, dated June 25, 2014, id. at 127.
5.Id. at 198-211.
6.Id. at 196-197.
7.Id.
8.Saquing v. Mora, 535 Phil. 1, 5 (2006).
9.Jimenez v. Atty. Jimenez, 517 Phil. 68, 73 (2006).
10.Rollo, p. 208.