Republic of the Philippines
SUPREME COURT
Manila

PANGANIBAN, J.:

In its original decision, ¹ the Court of Appeals ² answered the foregoing question in the affirmative and ordered the trial court to reopen the proceedings to enable the petitioner to present his evidence. Upon reconsideration, however, said Court ³ reversed itself and affirmed the regional trial court's ruling that petitioner's failure to present his side was due to his own fault or negligence. Undaunted, petitioner filed before this Court the present petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court praying for the nullification of the Amended Decision ⁴ of the Respondent Court of Appeals promulgated on March 5, 1992 and its Resolution ⁵ denying petitioner's motion for reconsideration, promulgated on July 3, 1992.

The dispositive portion of the challenged Amended Decision reads:

On November 17, 1988, Private Respondent Jimmy Tomas filed before the Regional Trial Court of Kalookan City, Branch City, Branch 127, ⁶ a complaint ⁷ for recovery of possession, quieting of title and damages with preliminary mandatory injunction against Petitioner Florencio Bernardo, the National Housing Authority (NHA), Raymundo Dizon, Jr. and Jose Vasquez in their official capacities as general manager and project manager, respectively, of NHA. The first pleading filed by therein Defendant Bernardo was an ex parte motion ⁸ for extension of time to file an answer signed by "Atty. Jose B. Puerto" as counsel. When the answer ⁹ was submitted later, his counsel became "Puerto Nuñez & Associates," but with the same "Jose B. Puerto" signing. Thereafter, all pleadings on behalf of Bernardo during the pre-trial were filed by said law firm, and the other parties furnished him with their own pleadings through the same firm.

It appears that the lot subject of the complaint was the object of a double sale by the NHA to Plaintiff Tomas and to Defendant Bernardo. The parties failed to reach an amicable settlement during the pre-trial. Thus, on November 6, 1990, the trial judge issued an order terminating pre-trial and scheduling initial trial on the merits on December 5, 1990. Counsel for plaintiff, however, requested for a resetting since the plaintiff was going out of the country and would be back only at the end of the year. This was granted and the hearing was reset to January 9, 1991. Later, the court realized that said date fell on a Wednesday, a day reserved for criminal cases. The hearing was thus reset anew to February 5, 1991. On this date, plaintiff's and NHA's respective counsels appeared. However, neither Defendant Bernardo nor his counsel ¹⁰ came despite due notice. During the proceedings, the court interpreter informed the judge that an "associate of Atty. Puerto" allegedly called to say that Atty. Puerto had
died. ¹¹ Pending official and verified notification of such death, the court decided to proceed with reception of evidence from the plaintiff. It was only on June 7, 1991, after Plaintiff Tomas and the NHA concluded the presentation of their respective evidence, that Atty. Marcelo J. Abibas, Jr. filed a notice of appearance ¹² as new counsel for Bernardo, mentioning therein the death of Atty. Puerto.

Without acting on the notice filed by Bernardo's new counsel and without receiving evidence from Defendant Bernardo, the trial court promulgated its decision ¹³ on June 11, 1991. The dispositive portion of said decision reads:

Bernardo, through his new counsel, filed a nine-page Omnibus Motion ¹⁵ seeking (1) reconsideration of the above decision, (2) reopening of the case and (3) a new trial on the grounds that he had been denied his substantive right to due process, particularly the right to be heard, and that said decision was contrary to law. In an Order ¹⁶ dated August 7, 1991, the trial judge denied the motion, reasoning thus:

On September 4, 1991, Bernardo filed his notice ¹⁸ of appeal. However, the appeal was denied due course by the trial court upon opposition by Tomas' counsel on the ground that it was filed beyond the reglementary period to appeal. Hence, on September 24, 1991, Bernardo filed before the Court of Appeals a petition for certiorari, mandamus, prohibition with injunction and
a special prayer for the issuance of a temporary restraining order. ¹⁹ A supplement ²⁰ thereto dated October 8, 1991 was filed through his collaborating counsel — Gonzales, Batiller, Bilog & Associates. On December 27, 1991, the Court of Appeal (Sixth Division) promulgated a Decision ²¹ in favor of Petitioner Bernardo, ordering the trial judge to set the case "for hearing for the reception of petitioner's evidence after which a decision be rendered based on the evidence and applicable law." The appellate court reasoned thus:

Respondent Tomas moved for the reconsideration of the above Decision. After Petitioner Bernardo filed his opposition thereto, the Respondent Court, this time through a Special Sixth Division, ²³ reversed its original decision and affirmed the trial court's judgment. It justified its change of mind this wise:

Bernardo's motion for reconsideration of the above Amended Decision was denied via a Resolution ²⁵ promulgated on July 3, 1992. Not satisfied with the said Amended Decision and Resolution, petitioner filed the present petition to this Court.

The petitioner raises a single issue:

In support of his petition, Bernardo argues that although "a court of justice is entitled to correct itself," it is grave abuse of discretion to do so "in a case where it would do away unceremoniously with the most cherished Constitutional right of petitioner to due process of law," or "when technicality would desert its objective of giving the parties the chance to present their side of the issue." ²⁷ Petitioner also claims that Respondent Tomas merely prayed that Respondent Court's original decision be modified such that a new trial would be denied the petitioner and only his appeal would be given due course. However, Respondent Court went beyond such reliefs prayed for, and instead reversed entirely its original decision. Petitioner contends that, in effect, Respondent Court of Appeals sanctioned the illegal proceedings in the trial court which had failed to accord him his substantive right to due process.

In brief, petitioner maintains that the Court of Appeals (and the trial court) committed grave abuse of discretion in depriving him of due process by failing to reopen the trial proceedings to enable him to present evidence to support his defenses, counterclaim and cross-claim.

The petition is not meritorious, except as to the award of damages.

At the outset, this Court notes that the proper remedy of Petitioner Bernardo should have been an appeal under Rule 45 of the Rules of Court. We have time and again reminded members of the bench and bar that a special civil action for certiorari under Rule 65 lies only when "there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law." ²⁸ Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, ²⁹ certiorari not being a substitute for lost appeal. ³⁰ The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. ³¹ For this procedural lapse, the petition should thus be denied outright. Moreover, there are even more cogent reasons for denying the petition on the merits.

Under Section 26, Rule 138 of the Rules of Court and established jurisprudence, a valid substitution of counsel has the following requirements: (1) the filing of a written application for substitution; (2) the client's written consent; (3) the consent of the substituted lawyer if such consent can be obtained; and, in case such written consent cannot be procured, (4) a proof of service of notice of such motion on the attorney to be substituted in the manner required by the Rules. ³² Where death of the previous attorney is the cause of substitution of the counsel, a verified proof of the death of such attorney (usually a death certificate) must accompany the notice of appearance of the new counsel.

Clearly, petitioner failed to comply with the above requirements. His new counsel's notice of appearance ³³ merely mentioned that Atty. Jose B. Puerto "recently died." A verified certificate of death was not attached thereto. It has been held that courts may not presume that the counsel of record has been substituted by a second counsel merely from the filing of a formal appearance by the latter. ³⁴

In any event, mere mention of the death of Atty. Puerto was of no moment for it was the law firm of Puerto Nuñez & Associates, — not merely Atty. Jose Puerto — which was the legal representative of petitioner. The death of said attorney did not extinguish the lawyer-client relationship between the firm and Bernardo. ³⁵

This Court is not unmindful of the belated attestation ³⁶ of the former secretary ³⁷ of said law office that the other partner, Dr. Constantino Nuñez, allegedly died even before 1986; that two associates ³⁸ ceased to be connected with the firm since 1989; while a third associate, Atty. Jose Acejas predeceased Atty. Puerto in March 1990, thereby leaving Atty. Puerto as the only lawyer in the office. But, obviously, it was petitioner's former counsel who misled the trial court into believing that "Puerto Nuñez and Associates," a law firm consisting of more than one lawyer, continued to legally represent Bernardo. Courts may presume that a law firm that represented itself as such, with at least two name partners and more than one associate is composed of at least three lawyers. ³⁹ It is not the duty of the courts to inquire during the progress of a case whether the partnership continues to exist lawfully, or the partners are still alive or its associates are still connected with the firm.

Jurisprudence teems with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel. Only when the counsel's actuations are gross or palpable, resulting in serious injustice to the client, that the courts should accord relief to the party. ⁴⁰ A thorough review of the instant case reveals that the negligence of the law firm engaged by the petitioner to defend his cause, and the error of his new counsel in giving a defective substitution and notice of the death of his former counsel, did not result in deprivation of due process to said party. Hence, a nullification of the Respondent Court's Amended Decision grounded on grave abuse of discretion is not warranted.

It should be stressed the petitioner was able to file his motion for reconsideration in which he presented his legal defenses with respect to the main subject of the original complaint. ⁴¹ His arguments were substantially discussed and debunked by the trial court in its order disposing of said motion. ⁴² Such motion for reconsideration cured whatever defect there may have been, if any, as regards the alleged denial of due process. ⁴³ It is a time-honored ruling that lack of opportunity to be heard, and not necessarily absence of prior notice, constitutes violation of due process. ⁴⁴

Worth mentioning is the fact that petitioner was likewise not entirely blameless in his alleged deprivation of his day in court. In a recent case, ⁴⁵ this Court enunciated:

In his concurring opinion in Republic vs. Sandiganbayan, ⁴⁷ Mr. Justice Teodoro R. Padilla emphasized the value and significance of the party's presence and diligence in the advancement of his cause, thus:

True enough, the party-litigant should not rely totally on his counsel to litigate his case even if the latter expressly assures that the former's presence in court will no longer be needed. No prudent party will leave the fate of his case entirely to his lawyer. Absence in one or two hearings may be negligible but want of inquiry or update on the status of his case for several months (four, in this case) is inexcusable. It is the duty of a party-litigant to be in contact with his counsel from time to time in order to be informed of the progress of his case. ⁴⁹ Petitioner simply claims that he was busy with his gravel and sand and trading businesses which involved frequent traveling from Manila to outlying provinces. But this was not a justifiable excuse for him to fail to ask about the developments in his case or to ask somebody to make the query for him. Petitioner failed to act with prudence and diligence; hence, his plea that he was not accorded the right to due process cannot elicit this Court's approval or even sympathy. ⁵⁰

Basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or best evidence
obtainable. ⁵¹

Neither did private respondent establish the legal basis for his claimed moral damages. Although such damages are incapable of exact estimation and do not necessitate proof of pecuniary loss for them to be awarded — the amount of indemnity being left to the discretion of the court — it is still essential to prove that: (1) injury must have been suffered by the claimant and (2) such injury must have sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. ⁵⁴ It is not enough that one merely says he suffered mental anguish, serious anxiety, social humiliation, wounded feelings and the like as a result of the actuations of the other party. ⁵⁵ Invariably, such actions must be shown to have been willfully done in bad faith or with ill motive. ⁵⁶ Bad faith or ill motive under the law cannot be presumed but must be established with clear and convincing evidence. ⁵⁷

This Court finds the grant of actual and moral damages to be untenable and substantially devoid of legal basis. Private respondent not being entitled to these damages, an award of exemplary damages is likewise baseless. ⁵⁸ Finally, where the award of moral and exemplary damages is eliminated, so must the award for attorney's fees be deleted. ⁵⁹ Private respondent has not shown entitlement thereto pursuant to the Civil Code. ⁶⁰ As petitioner was not able to present contradictory evidence, private respondent's ex parte claims for damages must be carefully reviewed and any doubt should be resolved against the latter.

WHEREFORE, premises considered, the assailed Amended Decision of Respondent Court of Appeals promulgated on March 5, 1992 and its Resolution of July 3, 1992 affirming the decision of the Regional Trial Court of Kalookan City, Branch 127, in Civil Case No. C-13614, are hereby AFFIRMED with the MODIFICATION that the trial court's award of actual, moral and exemplary damages and attorney's fees is DELETED.

SO ORDERED.