RODOLFO R. PAULINO, PETITIONER, VS. THE COURT OF APPEALS AND ASTERIA S. CHUNACO, RESPONDENTS.

This is a petition for review of the decision of the Court of Appeals dated February 19, 1993,
granting the petition for certiorari against the decision of the
Regional Trial Court of Legaspi City, Branch I, on December 18, 1991.

Petitioner Rodolfo R. Paulino served as counsel for the oppositor
in Special Proceeding No. 1450 entitled “In the Matter of the Guardianship
of Socorro Chunaco, et al. – Heracles P. Chunaco, petitioner,” by virtue
of a contract of services signed by him and the mother of the private
respondent who was then a minor. The
contract provided for the payment to the petitioner of a contingent fee of 35%
of the amount received, recovered or obtained by the private respondent from
said or related cases, either in settlement or by court action.

On September 24, 1990, Paulino filed a petition to confirm
payment to him of attorney’s fees in the amount of P72,638.78. In a supplemental motion for justification
of payment of attorney’s fees, he alleged that the private respondent had
already received P207,539.39 from the above-stated cases and that he was
entitled to 35% of such amount in the sum of P72,638.78. He further averred that there were other
partible assets due to the private respondent and that he was also entitled to
35% thereof.

An opposition was filed on the ground that there was no
attorney-client relationship between the parties and the contract for services
was unenforceable because it was signed by the private respondent’s mother,
Lilian Sambitan, who was not her legal guardian.

After rejecting this objection (for reasons not disputed in this
petition), Judge Eugenio G. Guan, Jr. of the Regional Trial Court of Legaspi
City, Branch I, issued an order on August 12, 1991, awarding to the petitioner
the amount of P52,958.98 as attorney’s fees.^[1] The
private respondent moved for reconsideration, reiterating the arguments earlier
raised in her opposition.

On November 6, 1991, the petitioner filed an urgent motion to
resolve all pending motions, including: a) the motion for reconsideration of the order dated August 12, 1991; b)
the motion for reconsideration of the order of September 3, 1991, denying
execution before appeal; and c) the motion for payment of attorney’s fees in
the sum of P52,532.83 dated August 25, 1991.

On December 4, 1991, the trial judge denied the motions for
reconsideration and granted the motion for payment of attorney’s fees in the
total amount of P105.491.81.^[2] The
private respondent filed a notice of appeal on December 13, 1991, but later
withdrew it on December 17, 1991. She
subsequently filed a petition for certiorari
with the Court of Appeals on December 31, 1991.

On December 18, 1991, an ex
parte motion for execution was granted by the trial court and a writ
of execution was issued for the payment of the attorney’s fees in the amount of
P105,491.81.^[3]
The private respondent objected on the ground that the motion for
reconsideration of the first award had not yet been resolved.

On February 19, 1993, the Court of Appeals granted the petition
for certiorari and set aside the order of the trial court. It ruled that as the order of December 4,
1991 awarded attorney’s fees in the amount of only P52,958.98, the writ of
execution in the amount of P105,491.81 was issued with grave abuse of
discretion.^[4]

In this petition for review of that decision, it is alleged that
the respondent court erred:

1)   in not dismissing the petition cutright;

2)   in concluding that the amount awarded to
herein petitioner was only P52,958.98;

3)   in not considering the orders of respondent
judge as final and executory after the appeal was withdrawn;

4)   in giving due course to the petition as a
substitute for an appeal that had been withdrawn; and

5)   in still entertaining issues on attorney’s
fees and order of execution in the petition.

The petitioner claims that the case should have been dismissed
outright because of the failure of the private respondent to submit a certified
true copy of the challenged order as required by Rule 65, Section 1 of the
Rules of Court. We are not
persuaded. The fact that the Court of
Appeals acted on the petition suggests that the objection was untenable and
that the petition was not insufficient in form. At any rate, this is a question of fact that this Court will not review.

The allegation that
the writ of execution was premature because the motion for reconsideration of
the order of August 12, 1991, had not yet been resolved is also
unacceptable. That motion was denied in
the order of the trial court dated December 4, 1991.

On the appropriateness of the petition for certiorari, we are guided by the
following rulings of the Court:

Ordinarily, an order of execution of a final and executory judgment
is not appealable because otherwise, there would be no end to a case. However, if in the opinion of the defeated
party, such order of execution varies the terms of the judgment and does not
conform to the essence thereof, or the terms of the judgment allow room for
interpretation and the interpretation given by the trial court as contained in
its order of execution is wrong, the latter may appeal the order so that the
Appellate tribunal may pass upon its legality and correctness.

The rule that appeal lies to question an order or writ which varies
the terms of the decision being executed is not, however, meant to constitute
the appeal as the sole and exclusive remedy in such instances. Any other proceeding appropriate and
allowable under the Rules may be pursued by the aggrieved party. Petitioner in this case availed of the
special civil action of certiorari under Rule 65 of the Rules of Court.^[5]

x x x

There are, to be sure, instances when an error may be committed in
the course of execution proceedings prejudicial to the rights of the
party. These instances, rare though
they may be, do call for correction by a superior court, as when: 1) The writ of execution varies the
judgment.

In these exceptional circumstances, considerations of justice and
equity dictate that there be some mode available to the party aggrieved of
elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari,
or by a special civil action of certiorari, prohibition or mandamus.^[6]

We find that there was no inconsistency between the order of
December 4, 1991 and the writ of execution dated December 18, 1991, because the
order called for the payment of all the attorney’s fees due to petitioner,
including those awarded on August 12, 1991. The mistake of the Court of Appeals was in holding that the writ of
execution was intended to implement only the order of August 12, 1991, disregarding
the later order of December 4, 1991, which also granted the motion for another
award of attorney’s fees in the amount of P52,532.83.

It would appear, however, that there was a slight error in the
sum of the two awards, as the records will clearly show.

On August 12, 1991, the trial court
awarded P52,958.98 as attorney’s fees based on the following computation:

However, a re-computation will show a slight discrepancy,
thus:

On December 4, 1991, the trial court
awarded P52,532.83 for attorney’s fees.

However, a re-computation will show that
the award should be slightly amended thus:

The sum of the two awards is thus not
P105,491.81 as indicated in the writ of execution but P104,493.24. This is the amount the Court of Appeals
should have recognized as due to the petitioner under the orders dated August
12, 1991, and December 4, 1991.

WHEREFORE, the petition is GRANTED and the decision of the
Court of Appeals dated February 19, 1993 is SET ASIDE. The writ of execution is REINSTATED but the
total award of attorney’s fees is reduced to P104,493.24. No costs.

SO ORDERED.

Davide, Jr., Bellosillo, Quiason, and
Kapunan, JJ., concur.

^[1]
Annex “B,” Records, pp. 10-13.

^[2]
Annex “3,” Records, p. 66.

^[3]
Annex “A,” Records, p. 9.

^[4]
Decision penned by Associate Justice Justo P. Torres, Jr., February 19, 1993.

^[5]
Reas v. Bonife, 190 SCRA 493.

^[6]
Limpin, Jr. v. Intermediate Appellate Court, 147 SCRA 516.