FIRST DIVISION
[A.C. No. 10395. October 17, 2018.]
FELIZ T. ORDOÑA-PONCE, complainant, vs.ATTY. REY C. PONCE, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated October 17, 2018which reads as follows:
"A.C. No. 10395 [formerly CBD Case No. 16-5190] Feliz T. Ordoña-Ponce v. Atty. Rey C. Ponce
For resolution by the Court is a verified disbarment complaint 1 filed on July 1, 2013 by Feliz T. Ordoña-Ponce (complainant) against Atty. Rey C. Ponce (respondent), accusing the latter of the following violations of various canons and rules of the Code of Professional Responsibility (CPR):
(1) Violation of Canon 1, Rules 1.01, 1.02, and 1.03, for allegedly making complainant file a petition for declaration of nullity of their marriage, docketed as Civil Case No. 6542-L, which respondent prepared, had the same raffled to the Regional Trial Court (RTC) of Lapu-Lapu City, Branch 54, where his alleged paramour's own annulment case was also pending, and the nullity case has been pending for several years due to respondent's dilatory tactics;
(2) Violation of Canon 6 and Rule 6.02, for allegedly making a travesty of justice by using his influence as the then Clerk of Court of the RTC of Lapu-Lapu City by paying for and filing the declaration of nullity case in his own office;
(3) Violation of Canon 7 and Rule 7.03, for his alleged womanizing;
(4) Violation of Canon 8, for harassing and bullying complainant's counsel in an earlier annulment case filed by respondent against her in 1998;
(5) Violation of Canon 10 and Rule 10.01 for resorting to unprofessional tactics, especially by making it appear that complainant filed the nullity case in 2006. caITAC
In a Resolution 2 dated March 19, 2014, this Court required the complainant to file his comment to the complaint, but said Resolution was returned to server as respondent has moved out from the address indicated in the complaint at No. 308 G.Y. Dela Serna Street, Lapu-Lapu City. 3 In a Resolution 4 dated September 10, 2014, complainant was required to furnish the Court with respondent's present and complete address within five (5) days from notice. Complainant, in compliance with said directive, filed a Letter 5 dated October 15, 2014 stating that respondent's address is at No. 308 G.Y. Dela Serna Street, Lapu-Lapu City, Cebu, although he sometimes stays in the house of his sister Annabella P. Rubi, which is adjacent to the school owned by the latter (Opon Kindergarten School). In the same letter, complainant also gave the address of respondent's counsel, Atty. Ricardo Amores (Atty. Amores), at 2nd Floor, AMCO Plaza, Lapu-Lapu City, Cebu.
In a Resolution 6 dated August 19, 2015, the Court required Atty. Amores to show cause why he should not be disciplinary dealt with or held in contempt for failure to file respondent's comment, considering that he was also furnished a copy of the Court's Resolution dated March 19, 2014. In compliance with the show cause order, Atty. Amores filed a Manifestation 7 dated October 10, 2015, stating that he was not hired by the respondent, who had been long out of the country, as counsel in the present case, and that he did not receive a copy of the complaint nor entered his appearance in the present case. Furthermore, he stated that while he was the respondent's counsel in the Civil Case No. 6542-L, he manifested to the trial court during the scheduled presentation of respondent's evidence that there had been no communication between him and respondent who was already abroad. 8 The Court noted this Manifestation in a Resolution 9 dated June 22, 2016.
In a separate Resolution 10 dated June 22, 2016, the Court also referred the case to the Office of the Bar Confidant (OBC) for evaluation, report, and recommendation within thirty (30) days from receipt of the record. 11 In its Report and Recommendation, 12 the OBC recommended that the case be referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation within ninety (90) days from receipt of the record.
Proceedings Before the IBP
During the scheduled mandatory conference on February 23, 2017, only complainant appeared. 13 Investigating Commissioner Narciso A. Tadeo (Commissioner Tadeo) of the IBP-Commission on Bar Discipline (CBD) ordered the parties to submit their position papers within ten (10) days from receipt of the Order. In a Letter 14 dated February 21, 2017, which was received by the IBP-CBD on February 24, 2017, respondent explained that he was unable to attend the mandatory conference due to health reasons.
In her Position Paper, 15 complainant stated that she and respondent were married at the United Church of Christ, Lapu-Lapu City on February 7, 1974, and that respondent was the Clerk of Court of the RTC of Lapu-Lapu City until his retirement in 2012. She reiterated her allegations that respondent, as the then Clerk of Court, manipulated the raffle of cases to his favorite sala at RTC-Lapu-Lapu City, Branch 54, whenever it suited him. She also alleged that respondent has apparent influence over judges and prosecutors, and that he has been employing dilatory tactics in the present case by intentionally failing to receive orders causing them to be returned to sender. 16
In addition, complainant accused respondent of having illicit relationships since 1974, and was cohabiting with a certain Vivian. Respondent also allegedly made her file a petition of annulment of their marriage in 2006 and paid her Fifty Thousand Pesos (P50,000.00) in exchange for her desistance from prosecuting him for violations of Republic Act (R.A.) No. 9262, 17 also known as the Anti-Violence against Women and Their Children Act of 2004. 18
Respondent, on the other hand, countered complainant's allegations that he was deliberately refusing to accept or receive orders from the Court. He stated that when complainant filed the present disbarment complaint before the Court, the latter was fully aware that respondent was out of the country, thus, he was unable to receive the Resolution of the Court dated March 19, 2014. He also alleged that complainant deliberately used a different address where respondent cannot receive communications from the Court, when she was aware that respondent's sister was living at Opon Kindergarten School and has in fact used the latter as respondent's address prior to her Letter 19 to this Court dated August 15, 2016. Respondent also countered complainant's claim that No. 308 G.Y. Dela Serna Street, Lapu-Lapu City is their conjugal home, stating that it is respondent's mother who owned the property. 20 cDHAES
Furthermore, respondent alleged that complainant's allegations in the present disbarment complaint are a rehash of complainant's allegations against him in a previous disbarment complainant filed before the IBP docketed as CBD Case No. 08-2143, which Commissioner Maria Editha Go-Binas (Commissioner Go-Binas) recommended to be dismissed in her Report and Recommendation dated February 18, 2014, and such recommendation was adopted by the IBP Board of Governors in Resolution No. XXI-2014-605 dated September 27, 2014. Lastly, respondent claimed that complainant is making it appear that she is a battered wife when the latter was the one who left him. 21
In her Comment and Opposition (to Respondent's Position Paper), 22 complainant maintained that the present disbarment case is the only disbarment case she filed against respondent. Furthermore, she denied the respondent's allegation in the latter's position paper that she had been through several relationships with other men and bore a son out of wedlock. 23
Report and Recommendation of the IBP
Commissioner Narciso A. Tadeo (Commissioner Tadeo) recommended the dismissal of the disbarment complaint against respondent. In his Report 24 dated July 8, 2017, he stated that complainant and respondent accused each other of marital infidelity and are already separated, and that their acts are acts of consenting adults. He also found that complainant had earlier filed a disbarment complaint against respondent involving the same charges which was recommended to be dismissed by the IBP for insufficiency of evidence. He also opined that the motive behind the filing of the present disbarment case is questionable considering that respondent has already retired from service and has gotten his retirement pay. 25
The IBP Board of Governors adopted Commissioner Tadeo's findings of fact and recommendation in a Notice of Resolution 26 dated November 29, 2017.
Ruling of the Court
This Court rules to dismiss the present disbarment complaint against respondent. Section 3 (a), 27 Rule 131 of the Rules of Court provides that a person is presumed innocent of crime or wrongdoing. "[The] Court has consistently held that an attorney enjoys the legal presumption that he is innocent of charges against him until the contrary is proved and that as an officer of the court, he is presumed to have performed his duties in accordance with his oath." 28 Thus, in disbarment proceedings, the burden of proof rests upon the complainant to establish the case against the respondent lawyer. 29 We find that complainant has failed to discharge this burden.
The verified disbarment complaint only contains complainant's bare allegations about respondent's act of manipulating the raffle of cases during his stint as Clerk of Court, his womanizing, as well as manipulating judicial processes in relation to the case for declaration of nullity of marriage which she filed way back in 2006. Complainant's allegation of manipulation of raffle of cases is not supported by any evidence on record. "[M]ere allegation is not evidence and is not equivalent to proof." 30
As regards complainant's allegation that respondent has been committing marital infidelity by keeping a concubine named Vivian, it appears that complainant has sought the assistance of the National Bureau of Investigation (NBI) to gather information on the respondent and his alleged paramour, as shown in her Letter 31 dated May 30, 2013 addressed to Hon. Leila De Lima, then Secretary of Justice. In the said letter, complainant sought then Secretary De Lima's assistance regarding two NBI agents whom she alleged to be withholding vital pieces of evidence from her regarding the respondent and his alleged paramour after she was unable to give money more than what she initially gave them. 32 This letter, however, does not prove the alleged marital infidelity but only contains other unsubstantiated allegations. On the other hand, respondent, in his Position Paper, averred that in a previous disbarment complaint, complainant also made the same accusation against him. Said disbarment complaint was recommended by Commissioner Go-Binas to be dismissed in her Report and Recommendation dated February 18, 2014, and such recommendation was adopted by the IBP Board of Governors in Resolution No. XXI-2014-605 33 dated September 27, 2014. 34 Commissioner Go-Binas found that Vivian, whom complainant accused of being respondent's concubine, was a lessee of the premises which complainant claimed to be their conjugal home but respondent was able to rebut by showing that the property was owned by respondent's mother. 35 Independent of the findings and recommendation of the IBP in CBD Case No. 08-2143, this Court also finds that the accusation of marital infidelity in the present case is similarly bereft of any evidence. ASEcHI
Finally, complainant's accusation that there was collusion in the 2006 declaration of nullity case and that respondent paid complainant the amount of Fifty Thousand Pesos (P50,000.00) in exchange for her desistance from prosecuting him for violations of R.A. No. 9262 is also not supported by the evidence on record. While complainant presented a copy of her Affidavit of Desistance 36 executed on February 6, 2006 and Acknowledgement Receipt, 37 also dated February 6, 2006, stating that she received P50,000.00 from respondent, these documents can only be taken as evidence of the fact that she decided to drop the charges against respondent and that she received the said amount, in the absence of other evidence showing the intent or motive behind these acts. As regards the alleged collusion, the documents submitted by the complainant, a copy of the complaint for declaration of nullity she filed and a Letter 38 to Judge Victor A. Teves, dated May 11, 2007, bringing to the latter's attention the alleged collusion, suffice it to say that such allegations in the said letter remain as such — mere allegations which complainant failed to substantiate in the case at bar.
WHEREFORE, the complaint against respondent Atty. Rey C. Ponce is hereby DISMISSED.
SO ORDERED." Bersamin, J., designated as Acting Chairperson of the First Division per S.O. No. 2606 dated October 10, 2018; Jardeleza, J., on official travel; Gesmundo, J., designated Acting Member per Special Order No. 2609 dated October 11, 2018, on official leave.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, pp. 1-3.
2.Id. at 32.
3.Id. at 48.
4.Id. at 48A-49.
5.Id. at 50.
6.Id. at 56.
7.Id. at 58-59.
8.Id. at 58
9.Id. at 64.
10.Id. at 65.
11.Id. at 64.
12.Id. at 66-68.
13.Id. at 93.
14.Id. at 94.
15.Id. at 154-162.
16.Id. at 155.
17. THE ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004. Approved March 8, 2004.
18.Id. at 155-156.
19. Complainant filed a Letter dated August 15, 2016 addressed to Atty. Ma. Lourdes C. Perfecto, Clerk of Court, Supreme Court Second Division, alleging that respondent deliberately refused to receive the Resolution dated March 19, 2014 and also alleged that Atty. Amores' explanation for failure to file a Comment to the disbarment complaint is unbelievable and the latter is not being truthful when he stated that he has not received a copy of the complaint. Id. at 71-74.
20.Id. at 111-112.
21.Id. at 111-114.
22.Id. at 176-179.
23.Id. at 177-178.
24.Id. at 185-187.
25.Id. at 186.
26.Id. at 183.
27. Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong[.]
28.Aba, et al. v. Attys. De Guzman, Jr., et al., 678 Phil. 588, 599-600 (2011).
29.Santos v. Dichoso, et al., 174 Phil. 115, 119 (1978).
30.Cabas v. Atty. Sususco, 787 Phil. 167, 174 (2016).
31.Rollo, p. 12.
32.Id.
33.Id. at 142.
34.Id. at 142.
35.Id. at 144.
36.Id. at 10.
37. Id. at 11.
38. Id. at 6-7.