GARY P. ROSAURO,
A.M. No. RTJ-03-1796
Complainant,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO,
CARPIO MORALES, and
TINGA,
JJ.
JUDGE ALFREDO E. KALLOS,
Presiding Judge of the Regional
Trial Court,
Branch X,
Respondent. February 10, 2006
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CARPIO, J.:
The Case
This
is an administrative complaint against respondent Judge Alfredo E. Kallos
(“respondent Judge”) of the Regional Trial Court,
In his
Complaint dated 12 July 2002, complainant Gary P. Rosauro (“complainant”)
alleged that in June 1997, respondent Judge, a friend and kumpadre, offered to sell to him an unregistered parcel of land in
Penaranda[1]
Street, Legaspi City (“Lot No. 1470”) measuring 235 square meters. Respondent
Judge allegedly claimed ownership over Lot No. 1470. Complainant orally agreed
to buy P2 million provided that respondent
Judge take care of its registration in complainant’s name, at no additional
cost. Complainant wanted to donate Lot No. 1470 to his two children, Marivic
and Allan Rosauro (“Marivic and Allan”).
Starting P50,000 loan, payable in two months from P1,695,000.[4]
Meanwhile, in February 1998, a certain Atty. German Mata
(“Atty. Mata”) filed with the Regional Trial Court, Legaspi City, Branch I (“Branch I”), a petition (“LRC Case No.
N-683”) to register
Complainant subsequently learned, from a receipt[7]
and the Deed of Absolute Sale[8]
respondent Judge gave him, that a certain Rodelia Esplana-Guerrero (“Guerrero”)
owned Lot No. 1470. Complainant also learned that Guerrero had sought the
reconstitution of her alleged title to Lot No. 1470 in the Regional Trial
Court,
With this new information and
respondent Judge’s failure to register Lot No. 1470, complainant hired a lawyer
to rescind his contract with respondent Judge. Accordingly, complainant’s
counsel wrote respondent Judge on
For respondent Judge’s failure
to refund the payments, his misrepresentations on Lot No. 1470’s ownership and
registrability, and Lot No. 1470’s non-registration, complainant filed this
Complaint.
In his Comment, respondent
Judge admitted offering to sell
In his Reply, complainant
maintained that respondent Judge never informed him that Guerrero owned Lot No.
1470 or that respondent Judge was merely acting as Guerrero’s representative.
On LRC Case No. N-683, complainant countered that respondent Judge hired Atty.
Mata as part of his undertaking to register Lot No. 1470. Complainant also
disclosed that respondent Judge tried to have this Complaint withdrawn.[10]
Complainant added that respondent Judge is known for borrowing money from
“tennis court buddies” in exchange for empty promises to render legal services.[11]
Respondent Judge filed a Rejoinder reiterating the claims in his Comment. Respondent Judge denied soliciting the withdrawal of this Complaint or borrowing money from “tennis court buddies.”
The Court referred this matter to Associate Justice Salvador J. Valdez, Jr. (“Justice Valdez”) of the Court of Appeals for investigation, report, and recommendation.
In his Report and Recommendation (“Report”), Justice Valdez found respondent Judge liable for gross misconduct and recommended his suspension from service for six months. The Report reads:
Quite obviously, the respondent judge
importuned the complainant to buy the subject lot because he knows the latter
to be a man of means as he unwittingly revealed in his Comment wherein he
stated, inter alia, that “the deed of absolute sale was made pursuant to the
desire of the complainant that the vendee(s) shall be his children Marivic and
Allan because his other commercial lot and building in the heart of Legazpi
Port w[ere] already placed in the name of his other two (2) children.” That the respondent had first ascertained the
paying capacity of his buyer, is a rule of thumb in any financial dealing. What is deplorable is that he did not make a
full disclosure of the nature of the property involved in the case at bar. As earlier pointed out, he did not let the
complainant know that it is not owned by him but by a certain Rodelia
Esplana-Guerrero. He insidiously made
the revelation only after the complainant had already given him P130,000.00.
What is more, he assured the
complainant of the lot’s regist[ra]bility as evidenced by the receipt of the
latter’s payment of P100,000.00 as shown by Exhibits “A” and “B”,
wherein he made it appear that the first payment of P30,000.00 was “for
follow (up) of papers of LRA (Land Registration Authority), Manila x x x
preparatory to the issuance of title to said lot” and the second, in the amount
of P70,000.00 was for “the expenses in securing the title x x x.” He did not level with the complainant by disclosing that
there was issued on December 12, 1927, a Decree No. 287130 for the lot but no
title was derived therefrom; hence,
Rodelia Esplana’s petition
for reconstitution of
title was peremptorily denied way
back on [November] 16, 1993. In all likelihood, the decree was not in the name
of Rodelia. Instead, he subsequently caused to be filed a petition for original
registration on P1,695,000] on the account
of the lot.
Respondent’s defense that he merely
brokered for Rodelia Esplana-Guerrero so that it should be the latter who
should return the payments made by the complainant when the lot could not be
titled, is no defense at all. On the
contrary, his acting in a fiduciary relation with the real owner of the lot, if
true, transgressed Rule 5.06 of the same Canon 5. More than that, when he assured the
complainant that the lot will be titled, he wittingly or unwittingly dragged
the Regional Trial Court of Legazpi, of which he is a presiding judge of one of
its Branches, into the failed transaction as the complainant must have believed
him because of his position in the court.
Unfortunately, the complainant, x x
x, was left by the respondent judge holding an empty bag.
Respondent’s cupidity for complainant’s money
was not confined to the sale of the lot but even included a loan of P50,000.00
on
PREMISES
CONSIDERED, the undersigned recommends that the respondent judge be found
GUILTY OF GROSS MISCONDUCT as charged and that he be SUSPENDED from office
without salary and other benefits for SIX (6) MONTHS. [12]
The Court finds respondent Judge liable for violation of Rules 5.02, 5.06, and 2.03 of the Code of Judicial Conduct[13] (“Code”) and for Impropriety.
Respondent
Judge Violated
Rule
5.02 and Rule 5.06 of the Code
Rule 5.02
Rule 5.02 of the Code provides that “[a] judge shall refrain from financial and business dealings that tend to x x x, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court x x x.” This provision, which filled the void left by Article 14(1)[14] of the Spanish Code of Commerce (prohibiting judges from engaging in commerce within their jurisdiction), is meant to limit judges’ commercial affairs except to the extent allowed in Rule 5.03[15] of the Code.[16]
Here, respondent Judge took part in a commercial transaction falling outside of the area delineated in Rule 5.03. Worse, respondent Judge did so in an underhanded manner, concealing vital information on Lot No. 1470’s ownership and non-registrability until after the sale had been consummated. By involving himself in such a transaction, respondent Judge not only allowed himself to be distracted from the performance of his judicial duties,[17] he also increased his involvement with persons likely to come before his sala regarding Lot No. 1470, thus increasing the chances of his disqualification from future litigation concerning that property. As we observed in Berin v. Judge Barte,[18] also involving a judge who brokered a real estate sale:
By
allowing himself to act as agent in the sale of the subject property,
respondent judge has increased the possibility of his disqualification to act
as an impartial judge in the event that a dispute involving the said contract
of sale arises. Also, the possibility
that the parties to the sale might plead before his court is not remote and his
business dealings with them might [not only] create suspicion as to his fairness
but also to [his ability to] render it in a manner that is free from any
suspicion as to its fairness and impartiality, and also as to the judge’s
integrity x x
x.
By serving as Guerrero’s attorney-in-fact, respondent Judge also violated Rule 5.06 of the Code which provides:
A judge should not serve as
the executor, administrator, trustee, guardian, or other fiduciary,
except for the estate, trust, or person of a member of the immediate family,
and then only if such service will not interfere with the proper performance of
judicial duties. xxx (Emphasis supplied)
and accordingly negated its purpose, namely —
to limit a judge's involvement in the affairs and interests of private individuals to minimize the risk of conflict with his judicial duties and to allow him to devote his undivided attention to the performance of his official functions.[19] x x x
As Guererro’s attorney-in-fact, respondent Judge fell under the purview of “other fiduciary” as contemplated in Rule 5.06. We held in Ramos v. Barot:[20]
Being and serving as an attorney-in-fact is within the
purview of “other fiduciary” as used in Rule 5.06. As a noun, “fiduciary” means
“a person holding the character of a trustee, or a character analogous to that
of a trustee, in respect to the trust and confidence involved in it and the
scrupulous good faith and candor which it requires.” A fiduciary primarily acts
for another’s benefit, pursuant to his undertaking as such fiduciary, in
matters connected with said undertaking. x x x
Respondent
Judge Also Violated Rule 2.03
The
Court also finds respondent Judge liable for violating Rule 2.03 of the Code in
using official stationery for his correspondence with complainant and the
latter’s counsel regarding Lot No. 1470. A court’s stationery, with its
official letterhead, should only be used for official correspondence.[21]
By using his sala’s stationery other than for official purposes, respondent
Judge evidently used the prestige of his office to benefit Guererro (and
himself) in violation of Rule 2.03[22]
of the Code.
Respondent
Judge is Liable for Impropriety
for
Non-Payment of Loan
A judge may obtain a loan if no law prohibits such loan.[23] Respondent Judge does not deny obtaining a
loan from complainant on
Constitute
Misconduct
Nevertheless,
we cannot adopt Justice Valdez’s characterization of respondent Judge’s
transgressions as amounting to (gross) misconduct. Misconduct in office is one
that affects the officer’s performance of his duties as an officer and not one
that affects his character as a private individual.[25] Here, respondent Judge’s questioned
acts do not relate to the performance of his duties but flow from his
involvement in a private commercial transaction. While this Court has held
judges liable for misconduct for acts unrelated to the performance of official
functions,[26]
the judges’ conduct in those cases were deemed prejudicial to the best interest
of the service.[27] This exceptional circumstance is absent here.
Under Section 11(B), in relation to Section 9(4) of Rule 140, as amended by A.M. No. 01-8-10-SC,[28] violation of Supreme Court rules constitutes a less-serious charge punishable by any of the following sanctions:
1.
Suspension from office without salary and
other benefits for not less than one (1) nor more than three (3) months; or
2. A fine of more
than P10,000.00 but not exceeding P20,000.00.
On the other hand, impropriety, which we have treated as a light charge,[29] is punishable by:
1.
A fine of not less than P1,000.00
but not exceeding P10,000.00 and/or
2. Censure;
3. Reprimand;
4. Admonition with warning.[30]
Considering the
nature and extent of respondent Judge’s transgressions, we find it proper to
impose on him the following penalties: (1) suspension from office without
salary and other benefits for a period of three
months for violation of Rules 2.03, 5.02, and 5.06 of the Code and (2) a fine of P10,000 for
impropriety. We warn respondent Judge that his further commission of
administrative offenses shall merit more severe sanctions.
WHEREFORE, we find respondent Judge Alfredo E. Kallos of the Regional Trial Court, Legaspi City, Branch X, GUILTY of (1) violating Rules 2.03, 5.02, and 5.06 of the Code of Judicial Conduct, and (2) Impropriety. We SUSPEND him from office for three months without salary and other benefits for the violation of the Code of Judicial Conduct,
and FINE him P10,000 for the
Impropriety, with WARNING that his further commission of administrative
offenses shall merit more severe sanctions.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice
[1]
Also spelled as “Peñaranda” in other parts of the rollo.
[2]
In the receipt dated P30,000 from complainant as
“advance payment for follow[-up] of papers in [Land Registration Authority],
Manila x x x.” Also in the receipt dated P70,000 from complainant as
“payment of the expenses in securing the title to
[3]
Rollo, p. 118.
[4]
[5]
Respondent Judge testified as the petitioners’ lone witness.
[7]
Dated
[8]
The undated Deed of Absolute Sale, notarized on P500,000
(rollo, p. 13). According to complainant, respondent Judge lowered the
price “to save on taxes” (TSN, 9 June 2003, p. 16).
[9]
Respondent Judge also used official stationery in his letters to
complainant dated 7 May 2002 (requesting
a meeting to discuss the second letter sent by complainant’s counsel), 13
October 1997, 27 October 1997, and 19 January 1998 (requesting additional
advance payments) (rollo, pp. 114-116, 127).
[10] Complainant alleged (rollo, pp.
26-27):
8.
[C]omplainant was verbally advised by Atty. Mata during the first week of
September that the Regional Trial Court, Legaspi City Branch I, presided by
Judge Romeo S. Danas has set the case (LRC [Case. No.] N-683) for hearing on
9. Complainant appeared in Court on the
scheduled date at the sala of Judge Danas, but the case was not included in the
court calendar for that day. Instead,
Judge Danas met the complainant and urge[d] him to forgive x x x respondent
[Judge] and talk over his differences with respondent Judge Kallos. [Respondent
Judge] then emerged from a room of the Court and proceeded to hug the
complainant, asking him to sign a prepared draft of a “Motion to Withdraw
Complaint” as he could be in trouble with the Supreme Court especially under
the administration of the incumbent Chief Justice [Hilario G. Davide, Jr.]. x x
x
[12]
Report, pp. 15-17 (capitalization in the original).
[13]
This was the Code of Judicial Conduct in effect when the acts complained
of took place. On
[14]
“The following can not engage in the commercial profession, neither in
person nor by proxy, nor can they hold any direct administrative or economic
position in commercial or industrial associations within the bounds of their
districts, provinces, or towns in which they discharge their duties:
1. Associate justices, judges, and
officials of the department of public prosecution (ministerio fiscal) in active service.
This provision
shall not be applicable to mayors (alcaldes),
municipal judges, and municipal prosecuting attorneys, nor to those who by
chance are discharging judicial or prosecuting functions.” (U.S. Division of Customs and Insular Affairs,
Translation of the Code of Commerce 9 [1899]).
[15]
“Subject to the provisions of the preceding rule, a judge may hold and
manage investments but should not serve as an officer, director, manager,
advisor, or employee of any business except as director of a family business of
the judge.”
[16] Berin v. Judge Barte, 434 Phil. 772 (2002).
[17]
Respondent Judge’s hiring of Atty.
Mata to file and litigate LRC No. N-683 and his decision to testify in that
case undoubtedly interfered in the performance of his judicial functions.
[18]
Supra at 777-778 (internal citations omitted).
[20]
A.M. No. MTJ-00-1338,
[21] See Oktubre v. Velasco, A.M.
No. MTJ 02-1444,
[22]
“A judge shall not allow family, social, or other relationships to
influence judicial conduct or judgment. The prestige of judicial office
shall not be used or lent to advance the private interest of others, nor
convey or permit others to convey the impression that they are in a special
position to influence the judge.” (Emphasis supplied)
[23]
Rule 5.04 of the Code provides: “A judge or any immediate member of the
family shall not accept a gift, bequest, favor or loan from anyone
except as may be allowed by law.” (Emphasis supplied)
[24]
Under Section 8(6), Rule 140 of
the Rules of Court, as amended by A.M. No. 01-8-10-SC, willful failure to pay a just debt constitutes a serious charge.
[25]
Beltran v. Rafer, A.M. No. MTJ-04-1553,
[26]
E.g. Saburnido v. Madrono (Adm. Mat. No. MTJ-90-383,
[27]
See Gil v. Judge Son, 311 Phil. 523 (1995).
[29]
See Miranda v. Judge Mangrobang, Sr., 422 Phil. 327 (2001).