THIRD DIVISION
[A.C. No. 12157. February 6, 2019.]
ANA P. GEQUILASAO, complainant, vs.ATTY. EDUARDO SEGUERA FORTALEZA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated February 6, 2019, which reads as follows:
"A.C. No. 12157 (ANA P. GEQUILASAO, complainant v. ATTY. EDUARDO SEGUERA FORTALEZA, respondent). — Utterances made during judicial proceedings are considered privileged unless it is sufficiently shown that they are "palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its relevancy and impropriety." 1
This case involves the Complaint 2 of Ana P. Gequilasao (Ana) against Atty. Eduardo S. Fortaleza (Atty. Fortaleza), charging him with violation of Canon 8, Rule 8.01 of the Code of Professional Responsibility and Rule 138, Section 20 (f) of the Rules of Court. 3 In his September 24, 2016 Report and Recommendation, 4 the Investigating Commissioner of the Integrated Bar of the Philippines recommended that the Complaint be dismissed. 5 The Integrated Bar of the Philippines Board of Governors, in its March 1, 2017 Resolution, 6 resolved to adopt the findings of fact and recommendation of the Investigating Commissioner. 7
On November 25, 2013, Atty. Fortaleza filed before the Regional Trial Court a Petition for Judicial Authorization to Encumber Real Properties 8 at the behest of his client, Danny C. Gequilasao (Danny), Ana's husband. The Petition was docketed as Civil Case No. 13-32111. 9
The Petition prayed for the trial court's approval of the mortgage of two (2) properties in Mandurriao, Iloilo City acquired by the Gequilasao Spouses during their cohabitation. The proceeds would be used to repair their businesses and family home, which were all ravaged by typhoon Yolanda, and for their children's school expenses. 10
In the Petition, Danny claimed that Ana squandered his hard-earned money "to defray the expenses entailed by her extravagant ways and illicit affairs[.]" 11 He also alleged that she was an "inveterate gambler" 12 and an uncaring mother. 13 Pertinent allegations were enumerated in Paragraphs 23 and 24 of the Petition, which read: CAIHTE
23. The following overt acts of the RESPONDENT are indicia of her wayward ways as she lived in splendor using the hard-earned money of the PETITIONER, viz.:
• RESPONDENT sponsored the Christmas Party in 2012, of the CAFGU with detachment in Bagong Barrio, Tapaz, Capiz, with Jocirval Lemana as Detachment Commander, for the sum of not less than Thirty Thousand Pesos (PhP30,000.00);
• In May, 2012, during the fiesta in San Julian, Capiz, RESPONDENT sponsored at least four (4) tables worth One Thousand Pesos (PhP1,000.00), each, with one (1) table reserved for Jocirval Lemana and company, and three (3) tables reserved for her friends and our employees;
• RESPONDENT shouldered the tickets, and drinks for at least ten (10) companions of Jocirval Lemana, during the said fiesta;
• In the morning of February 19, 2013, RESPONDENT admitted to PETITIONER her affair with Jocirval Lemana;
• RESPONDENT addresses Jocirval Lemana as "HON," short for "HONEY";
• The SIM card number of RESPONDENT which she was using to contact PETITIONER, her children, and Jocirval Lemana is: 09208978936;
• RESPONDENT used to address PETITIONER as "BABES";
• RESPONDENT had been consuming birth control pills on a regular basis even while PETITIONER was already on board an ocean-going vessel plying an international route, until the day before PETITIONER arrived home in San Julian, Tapaz, Capiz, on February 18, 2013;
• RESPONDENT also procured pregnancy test kits even while PETITIONER was already several months away from home in San Julian, Tapaz, Capiz, on board an ocean-going vessel plying an international route;
• RESPONDENT also procured "ALBOTHYL," even while PETITIONER was already months away from home in San Julian, Tapaz, Capiz, on board an ocean-going vessel plying an international route;
• "ALBOTHYL" is a medication for inflammation of the cervix, otherwise known as cervicitis;
• RESPONDENT missent a text message to PETITIONER on February 18, 2013, at 7:59 o'clock in the evening;
• The missent text message was intended for Jocirval Lemana;
• RESPONDENT is an inveterate gambler;
• RESPONDENT has no house of her own, and presently, she is staying in the house of her aunt in 20B, El 98 Street, Taytay Zone II, Jaro, Iloilo City;
• RESPONDENT is a socialite who spends time in the company of socialite friends;
• In March, 2013, while Dennis Lorenz was sick, RESPONDENT was gallivanting with her friends in Manila, particularly in the SM Mall of Asia;
• RESPONDENT is not gainfully employed;
• RESPONDENT is not a caring mother, for she left the children under the care of the "yaya"; DETACa
• Marilyn G. Gayagaya has been the househelper of PETITIONER and RESPONDENT for about six (6) years already, and it was mainly under her care that RESPONDENT left the children;
• Since 1996, PETITIONER has been gainfully employed as Engineer in a ship, initially as Fourth Marine Engineer, and eventually as Chief Marine Engineer, in the year 2004, until his emergency disembarkation in February, 2013;
• RESPONDENT withdrew the CASH BOND amounting to US$11,139.95, posted in favor of SANTOS PETROLEUM CORPORATION, and to date, the whereabouts of the said sum of money is unknown;
• RESPONDENT took the said US$11,139.95 for her personal gain and profit;
• RESPONDENT actually withdrew the sum of EIGHT HUNDRED TEN THOUSAND EIGHT HUNDRED TWENTY-FIVE PESOS (PhP810,825.00), from PETITIONER's Saving's Account with the BPI, SM City Branch;
• The foregoing amount of EIGHT HUNDRED TEN THOUSAND EIGHT HUNDRED TWENTY-FIVE PESOS (PhP810,825.00) should have been applied by RESPONDENT to the monthly payment due to NIKKIE BUILDERS, Compaña Street, Molo, Iloilo City, which contracted the construction of a three (3)-door apartment in Tabucan, Mandurriao, Iloilo City;
• RESPONDENT applied the sum of EIGHT HUNDRED TEN THOUSAND EIGHT HUNDRED TWENTY-FIVE PESOS (PhP810,825.00) for her personal gain and profit;
• RESPONDENT took the sum of FOUR HUNDRED NINETY-ONE THOUSAND TWO HUNDRED SEVENTY-NINE PESOS and 50/100 (PhP491,279.50), which amount formed part of the initial capital required of PETITIONER and RESPONDENT by SANTOS PETROLEUM CORPORATION, for her personal gain and profit;
• RESPONDENT took the sum of THREE MILLION ONE HUNDRED FIFTY THOUSAND PESOS (PhP3,150,000.00), from the income of the RENZO GAS STATION and RENZO MINIMART, for the period May 18, 2011 to February 18, 2013, for her own personal gain and profit;
• RESPONDENT sold THREE THOUSAND TWO HUNDRED (3,200) sacks of palay, stocked in the bodega of PETITIONER and RESPONDENT in San Julian, Tapaz, Capiz, and appropriated the proceeds therefrom, for her personal gain and profit, to the tune of at least ONE MILLION FIVE HUNDRED THOUSAND PESOS (Php1,500,000.00);
• RESPONDENT, on her own, mortgaged two (2) parcels of riceland which were mortgaged to PETITIONER and RESPONDENT by Mr. Giner and RESPONDENT's own father himself, for the total amount of ONE HUNDRED TEN THOUSAND PESOS (PhP110,000.00), which amount she appropriated for her own personal gain and profit;
• RESPONDENT sold the two (2) carabaos taken care of by Silvestre Cambel, PETITIONER's uncle, for FORTY-FIVE THOUSAND PESOS (PhP45,000.00), which amount she appropriated unto herself, for her own personal gain and profit;
• RESPONDENT lent money to several persons amounting to FOUR HUNDRED FORTY-EIGHT THOUSAND SIXTY-NINE PESOS and 57/100 (PhP448,069.57), which amount has not been collected until the present, to the prejudice of the PETITIONER; aDSIHc
• RESPONDENT sold goods in RENZO MINIMART, on credit, to several persons, amounting to TWO HUNDRED EIGHTY-THREE THOUSAND ONE HUNDRED EIGHTY-SEVEN PESOS and 50/100 (PhP283,187.50), which amount remains uncollected until the present, to the prejudice of the PETITIONER; and
• RESPONDENT also sold fuel oil (gasoline and diesel) from RENZO GAS STATION, on credit, to several persons, amounting to ONE HUNDRED FORTY-ONE THOUSAND EIGHT HUNDRED FIFTY-NINE PESOS and 07/100 (PhP141,859.07), which amount remains uncollected up to the present, to the prejudice of the PETITIONER.
24. In view of the foregoing, it would appear that RESPONDENT even had already taken more than her fair share in the properties acquired in the course of the cohabitation of the PETITIONER and RESPONDENT, and squandered the same to defray the expenses entailed by her extravagant ways and illicit affairs, which taking was unwarranted to begin with[.] 14
The trial court's intervention was sought since the declaration for the nullity of the spouses' marriage was still pending in another trial court. Danny stated that Ana's consent could not be obtained, as she abandoned her family and made his and their children's lives "a living hell[.]" 15
On July 28, 2014, Ana filed a Complaint 16 against Atty. Fortaleza before the Integrated Bar of the Philippines. She claimed that he portrayed her as "a woman of loose morals, an unfaithful wife, an uncaring mother[,] and a [thief] or even a swindler." 17 His description of her was allegedly abusive and offensive, which caused her "dishonor, discredit, mental anguish[,] and besmirched reputation." 18
Ana claimed that Atty. Fortaleza violated Canon 8, Rule 8.01 of the Code of Professional Responsibility by using "language which is abusive, offensive or otherwise improper." 19 He also allegedly violated Rule 138, Section 20 (f) of the Rules of Court because the malicious allegations made in the Petition were not germane to the subject of the Petition. 20
On October 1, 2014, Atty. Fortaleza filed his Answer, 21 admitting that he signed and prepared the Petition in Civil Case No. 13-32111. However, he alleged that it was done in his capacity as counsel for Ana's husband, who supplied the allegations, as evidenced by the Verification/Certification against Forum Shopping 22 attached to the Petition. 23
Atty. Fortaleza also countered that the allegations made were relevant to the Petition, as these showed the dire circumstances that compelled his client to seek judicial intervention. As such, these allegations were in the form of privileged communication. 24
On September 24, 2016, Investigating Commissioner Romualdo A. Din, Jr. (Commissioner Din) issued a Report and Recommendation, 25 recommending the Complaint's dismissal. 26 He found that the grant or denial of the prayer in Civil Case No. 13-32111 hinged on the allegations made in Paragraphs 23 and 24 of the Petition. Thus, while the allegations might have vexed Ana, they were material to the purpose of the case since they lay the foundation on why Atty. Fortaleza's client sought judicial authority to encumber the real properties. 27
Relying on the test of relevancy in Uy v. Atty. Depasucat, 28 Commissioner Din held that the allegations "must be so palpably wanting in relation to the subject matter" 29 to not be considered privileged. 30 In this case, however, the utterances made in the Petition, no matter how offensive or malicious from Ana's vantage, were relevant. Since she could not substantiate her claim that Atty. Fortaleza had ill motives in drafting the Petition, it followed that the Complaint must be dismissed. 31
On March 1, 2017, the Integrated Bar of the Philippines Board of Governors issued a Resolution, 32 adopting the findings of fact and recommendation of the Investigating Commissioner. 33 TIADCc
The issues for this Court's resolution are:
First, whether or not respondent Atty. Eduardo Seguera Fortaleza violated Canon 8, Rule 8.01 of the Code of Professional Responsibility for the utterances he made in a pleading, which were alleged to have been abusive, offensive, and improper; and
Second, whether or not respondent violated Rule 138, Section 20 (f) of the Rules of Court for the malicious claims, which were allegedly immaterial to his client's cause.
This Court rules in the negative and resolves to adopt the findings of fact and recommendation of the Integrated Bar of the Philippines Board of Governors, as based on the Report and Recommendation of the Investigating Commissioner.
Canon 8, Rule 8.01 of the Code of Professional Responsibility provides:
CANON 8 — A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.
RULE 8.01. A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.
This Court holds that respondent did not violate Canon 8, Rule 8.01. The utterances, as offensive as they may be for complainant, are absolutely privileged as they fall within a legitimate judicial proceeding. Moreover, the allegations in Paragraphs 23 and 24 of the Petition were not respondent's, but his client's. This is supported by the Verification/Certification against Forum Shopping 34 attached to the Petition. Among others, the document stated that his client caused the preparation of the Petition, and read and understood the contents in it.
Meanwhile, Rule 138, Section 20 (f) of the Rules of Court provides:
SEC. 20. Duties of attorneys. — It is the duty of an attorney:
xxx xxx xxx
(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged[.]
Respondent cannot be said to have violated Rule 138, Section 20 (f) because the allegations were material in establishing his client's cause in the Petition.
The test of relevancy in Uy v. Atty. Depasucat35 states that allegations made during judicial proceedings need not be on point with the subject matter of the controversy all the time. It is sufficient that they can be legitimately linked to the topic and may become the subject of inquiry during trial. 36 However, utterances that are "palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its relevancy and impropriety" 37 do not fall within the scope of privileged communication. 38
Here, the allegations made in Paragraphs 23 and 24 of the Petition lay the antecedents that compelled respondent's client to seek judicial intervention. It showed the source of conflict between the spouses and why his client could not obtain complainant's consent to encumber the real properties. The allegations, therefore, are considered absolutely privileged as they are relevant to the subject of the Petition, even if they might be malicious or false.
The rule on privileged communication arose from public policy to have a "free and unfettered administration of justice," 39 so that parties, lawyers, and judges may "speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages." 40
The Complaint, therefore, has no leg to stand on. Complainant failed to substantiate her claims that respondent acted with malice in drafting the Petition, and that the allegations made were not at all germane to the subject of Civil Case No. 13-32111.
WHEREFORE, the March 1, 2017 Notice of Resolution No. XXII-2017-841 of the Integrated Bar of the Philippines Board of Governors is NOTED. This Court resolves to ADOPT and APPROVE the findings of fact, conclusions of law, and recommendations of the Investigating Commissioner in his September 24, 2016 Report and Recommendation, which the Integrated Bar of the Philippines Board of Governors likewise adopted and approved. The Complaint against respondent Atty. Eduardo Seguera Fortaleza is DISMISSED. AIDSTE
Accordingly, the case is CLOSED and TERMINATED.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Uy v. Atty. Depasucat, 455 Phil. 9, 19 (2003) [Per J. Austria-Martinez, Second Division].
2.Rollo, pp. 2-10.
3.Id. at 9.
4.Id. at 115-127. The Report and Recommendation was penned by Commissioner Romualdo A. Din, Jr. of the Commission on Bar Discipline, Integrated Bar of the Philippines.
5.Id. at 127.
6.Id. at 113-114.
7.Id. at 113.
8.Id. at 11-25.
9.Id. at 11.
10.Id. at 21-23.
11.Id. at 20.
12.Id. at 17.
13.Id. at 18.
14.Id. at 16-20.
15.Id. at 22.
16.Id. at 2-10.
17.Id. at 8.
18.Id.
19. CODE OF PROFESSIONAL RESPONSIBILITY, Canon 8, Rule 8.01.
20.Rollo, p. 9.
21.Id. at 56-67.
22.Id. at 25.
23.Id. at 56-58.
24.Id. at 62-64.
25.Id. at 115-127.
26.Id. at 127.
27.Id. at 125.
28. 455 Phil. 9 (2003) [Per J. Austria-Martinez, Second Division].
29.Id. at 19.
30.Rollo, p. 126.
31.Id. at 125-127.
32.Id. at 113-114.
33.Id. at 113.
34.Id. at 25.
35. 455 Phil. 9 (2003) [Per J. Austria-Martinez, Second Division].
36. Id. at 19.
37. Id.
38. Id.
39. Id. at 18.
40. Id. at 19.