Nesje v. Lopez, Jr.

FIRST DIVISION

[A.C. No. 10707. April 4, 2018.]

ELIZABETH T. NESJE, petitioner, vs. ATTY. RODOLFO T. LOPEZ, JR., respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedApril 4, 2018which reads as follows:

"A.C. No. 10707 [formerly CBD Case No. 15-4795] — Elizabeth T. Nesje vs. Atty. Rodolfo T. Lopez, Jr.

For Our resolution is an administrative complaint 1 filed by Elizabeth T. Nesje (complainant) against Atty. Rodolfo T. Lopez, Jr. (respondent) for abuse of trust and confidence.

Complainant alleged that respondent, who is her nephew, represented her in a civil case. The instant complaint, however, arose from complainant and her husband's (spouses) purchase of a house and lot from Avida Land Corporation (Avida) in Dasmariñas, Cavite sometime in 2012. Being based in Norway, the spouses commissioned respondent to transact with Avida on their behalf. Complainant remitted sums of money to respondent from July 30, 2012 until January 13, 2014 through bank transfers in the total amount of P1,135,000 for the monthly amortizations and improvements of the house. It was also averred that aside from such remittances, a sum of P33,500 was personally handed to the respondent. 2 HEITAD

However, sometime in 2014, the spouses decided to sell the property to a buyer who would be willing to assume the outstanding balance due to a misunderstanding between the spouses and the respondent. Consequently, respondent sent an unsigned Deed of Assignment and Transfer of Rights 3 and informed the spouses that he was still looking for a buyer. Nothing was heard from the respondent thereafter, until complainant learned in 2015 that Avida cancelled the sale and issued a manager's check in the amount of P288,526 by way of refund. 4

Complainant charged respondent with gross misconduct and negligence in failing to avert the cancellation of the sale and for breach of trust and confidence for failure to account for the money and property received in trust for a client. 5

For his part, respondent alleged that he was not the one who initiated the purchase of the property as he came into the picture only when Avida held complainant's reservation in abeyance due to the unearthed cases filed against complainant. Respondent was persuaded to pose as the buyer of the property, together with his wife, for the complainant. Thus, the transfer of the application for reservation to respondent and his wife was effected. 6

Respondent admitted the receipt of the sums of money through bank transfers in the total amount of P1,135,000 but not the sums allegedly handed to him personally. He averred though that all the money he received were utilized for the purposes they were intended. 7

According to the respondent, the cancellation of the sale was due to the spouses' default in the payment of the amortizations. He insisted, however, that he never failed to remind the spouses of the said impending cancellation. Despite such reminder, the spouses still failed to settle their unpaid amortizations. Instead, the spouses requested for a Deed of Assignment and Transfer of Rights, which remained unsigned as the same was not returned to respondent by the spouses. Next thing that followed was the spouses informing him that they were no longer interested to continue with the Avida contract for lack of financial capacity. Consequently, the spouses authorized him to sell the property. All efforts to sell the property, however, failed, which resulted to the cancellation of the contract to sell with Avida. 8 aDSIHc

In its Report and Recommendation 9 dated May 10, 2016, the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) found no sufficient ground to impose sanctions upon the respondent. The IBP-CBD found evidence on record that the spouses have authorized the respondent to sell the property. However, the efforts to sell the property failed. That there was no negligence on the part of respondent to sell the property and prevent the cancellation of the contract with Avida was proven by the fact, known to the spouses, that negotiations with certain prospective buyers occurred, except that the same did not materialize due to the incapacity of the said prospective buyers to pursue the sale. Moreover, the IBP-CBD noted that respondent could not have allowed the cancellation of the contract with Avida by reason of incapacity to pay the amortizations because the same would reflect on his name, being the buyer on record. Hence, the IBP-CBD concluded that it will not be fair to ascribe the consequences of the spouses' failure to pay the amortizations to respondent, recommending thus that the complaint against the latter be dismissed.

In its Resolution No. XXII-2016-500 10 dated September 23, 2016, the IBP Board of Governors adopted the IBP-CBD's findings and recommendation, thus:

RESOLVED to ADOPT the findings of fact and recommendation of the Investigating Commissioner dismissing the complaint.

No motion for reconsideration or petition for review was thereafter filed.

Based on complainant's allegations and the evidence on record, should the respondent be sanctioned administratively?

We answer in the negative.

Foremost, this Court would like to remind the complainant and all person who would file an administrative complaint against lawyers that in administrative cases, the only issue within the ambit of the Court's disciplinary authority is whether a lawyer should be sanctioned as or is fit to remain a member of the Bar. Other issues are proper subjects of judicial action. In Spouses Williams v. Atty. Enriquez, 11 We explained:

[I]t is imperative to first determine whether the matter falls within the disciplinary authority of the Court or whether the matter is a proper subject of judicial action against lawyers. If the matter involves violations of the lawyer's oath and code of conduct, then it falls within the Court's disciplinary authority. However, if the matter arose from acts which carry civil or criminal liability, and which do not directly require an inquiry into the moral fitness of the lawyer, then the matter would be a proper subject of a judicial action which is understandably outside the purview of the Court's disciplinary authority. 12 (Citation omitted)

The instant complaint, on its face, does not merit this Court's exercise of disciplinary authority over erring lawyers. As can be gleaned from the complaint, complainant's prayer is to hold respondent civilly liable for the spouses' lost of the subject property. Complainant clearly stated in her complaint, as well as in her position paper before the IBP-CBD:

I am therefore filing this case to compel respondent Atty. Rodolfo T. Lopez, Jr. to return to us our property and to execute the proper deed of conveyance. 13 ATICcS

Undoubtedly, this is beyond the purview and not the proper subject of an administrative action against a member of the Bar.

At any rate, the allegation of abuse of trust and confidence likewise deserve scant consideration. The findings of fact and recommendation of the IBP are well-taken. There is nothing in the records that would prove complainant's claim that respondent, whether as a lawyer or her nephew, abused her trust and confidence. Nor was there anything on record that would show that respondent neglected her duty to or agreement with the complainant as regards the transaction with Avida. What is clear in this case is that the spouses became incapacitated to continue with the payment of the amortizations, which resulted to the cancellation of the contract with Avida. The records, in fact, show that respondent exerted efforts to save the property from being taken back by Avida by attempting to sell the same to a buyer who would be willing to assume the remaining amortizations.

In Angeles v. Atty. Figueroa, 14 We held:

[A] mere charge or allegation of wrongdoing does not suffice. Accusation is not synonymous with guilt. There must always be sufficient evidence to support the charge. This brings to the fore the application of the age-old but familiar rule that he who alleges must prove his allegations x x x [R]espondent x x x is not under obligation to prove his negative averment, much less to disprove what has not been proved by complainants. Thus, we have consistently held that if the complainant/plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the respondent/defendant is under no obligation to prove his exception or defense. 15 (Citation omitted)

Evidently, complainant failed to discharge such burden to prove her administrative charges against respondent. ETHIDa

WHEREFORE, this Court resolves to ADOPT the Integrated Bar of the Philippines Board of Governors Resolution No. XXII-2016-500 dated September 23, 2016. Accordingly, the instant administrative complaint against Atty. Rodolfo T. Lopez, Jr. is hereby DISMISSED for utter lack of merit.

SO ORDERED." Sereno, C.J., on leave.

Very truly yours,

(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 1-5.

2.Id. at 1-3 and 122.

3.Id. at 46-48.

4.Id. at 3 and 122.

5.Id. at 122-123.

6.Id. at 123.

7.Id.

8.Id. at 123-124.

9.Id. at 121-126.

10.Id. at 119.

11. 722 Phil. 102 (2013).

12.Id. at 110, citing Anacta v. Atty. Resurreccion, 692 Phil. 488, 500 (2012).

13.Rollo, pp. 4 and 89.

14. 507 Phil. 194 (2005).

15.Id. at 201-202.