ATTORNEY CELSO D. LAVIÑA, REMEDIOS M. MUYOT, SPOUSES VIRGILIO D. CEBRERO AND SECUNDINA MAGNO-CEBRERO, PETITIONERS, VS. HONORABLE COURT OF APPEALS AND JOSEFINA C. GABRIEL, RESPON…

Two petitions were filed
in this Court to review:  (1) the
contempt resolution dated May 4, 1987, of the Court of Appeals, and (2) its
decision dated September 15, 1987 in a special civil
action of certiorari (CA-G.R. SP No. 11260).

G.R. No. 78295. –

Assailed in G.R. No.
78295 is the resolution dated May 4, 1987 of the Court of Appeals:  (a) annulling Judge Vicencio’s
order cancelling the notice of lis
pendens on the title of the disputed property; (b) ordering the Register
of Deeds of Manila to revive the said
notice of lis pendens;
and (c) requiring Judge Vicencio, his branch clerk of court, Virgilio Caballero, and petitioner, Attorney Celso Laviña, to show cause,
within one week from notice, why they should not be punished for contempt of
court for having disobeyed the temporary restraining order of the Court of
Appeals.

On April 6, 1983, Maria Carmen Gabriel y Paterno,
single, 72 years old, executed a donation mortis causa,
in favor of her widowed sister-in-law, Josefina C. Gabriel, 75 years of age,
over a 3,081-square-meter parcel of land with improvements in Sampaloc, Manila, covered by Transfer Certificate of Title
No. 155865 in Carmen’s name.  The
donation was thumbmarked by Carmen before Notary
Public Jose T. Constantino.  It was accepted by the donee
in the same instrument (pp. 77-82 & 293,
Rollo, G.R. No. 79917).

Four months later, on August 11, 1983, Carmen, who was already
gravely ill with breast cancer, executed a Last Will and Testament in which she
bequeathed the same Sampaloc property to her cousin
and companion, Remedios C. Muyot,
and willed a small 240-square-meter lot in Antipolo, Rizal (TCT No. 278-6) to Josefina.  She named a friend, Concepcion
M. De Garcia, as executrix of her will (pp. 288-291, Rollo,
G.R. No. 79917).

On August 15, 1983,
Carmen executed a General Power of Attorney appointing Remedios
M. Muyot, as her attorney-in­-fact for the following
purposes:

“1.     To
administer, take charge, and manage for my sole benefit, all my properties,
whether real or personal, wheresoever located;

“2.     To collect, demand and recover all debts,
notes or sums of money due me now or which in the future may become due or
payable to me, and for this purpose, to issue such receipts, papers, or deeds,
in my name and stead; to cash or endorse checks drawn in my favor, to deposit
in, or withdraw from, any accounts with any banks wherever I may have savings,
checking, or time deposit accounts;

“3.     To execute, sign, authenticate, and enter into any and all
contracts and agreements for me and in my name with any person or entity; and,
if necessary to settle my personal obligations, such as for medical expenses,
to mortgage or to dispose of for value any or portion of any of my properties,
whether real or personal; and

“4.     To bring suit, defend, and enter into
compromises in my name and stead, in connection with actions brought for or
against me, of whatever nature and kind.” (Annex D, p.
61, Rollo, G.R. No. 79917.)

On November 3, 1983,
Josefina registered an adverse claim on the title of the Sampaloc
property based on the donation made by Carmen in her favor (p. 98, Rollo, G.R. No. 79917).

The next day, November
4, 1983, Remedios Muyot,
as Carmen’s attorney-in-fact, hired Atty. Celso D. Laviña, as Carmen’s counsel, on a 30% contingent fee basis
(Annex E, p. 62, Rollo, G.R. No. 79917).

On November 19, 1983, Carmen thumbmarked an “AFFIDAVIT
OF DENIAL” repudiating the donation of the Sampaloc
property to Josefina because it was allegedly procured through fraud and
trickery.  She alleged that in
April 1983, she still could sign her name, and that she had no intention of
donating the property to Josefina who had not done her any favor and in fact
abandoned her during her illness (pp. 100 and 113, Rollo,
G.R. No. 79917).

On the same occasion, November 19, 1983, she thumbmarked
a “REVOCATION OF DONATION” before Notary Public James Beltran (p. 85,
Rollo, G.R. No. 79917).

Two days later, on November 21, 1983, Remedios
Muyot, as Carmen’s attorney-in-fact, sold the Sampaloc property to Virgilio D. Cebrero for an alleged consideration of P2,664,655 (p. 88, Rollo, G.R. No. 79917).

On November 29, 1983,
Carmen passed away (Annex C, p. 83, Rollo, G.R. No.
79917).

On December 1, 1983,
the “REVOCATION OF DONATION” was registered on the back of Carmen’s
TCT No. 155865 (p. 119, Rollo, G.R. No. 79917).

On December 5, 1983,
Josefina filed a complaint in the Regional Trial Court of Manila against
Carmen’s estate and the Register of Deeds of Manila to annul the Deed of
Revocation of Donation (Civil Case No. 83-21629).  She alleged that the deed of revocation, made
only ten (10) days before Carmen’s death, was false and fictitious.  She asked the court to appoint an
administrator ad litem
for the estate of Carmen P. Gabriel (Annex B, p. 55, Rollo,
G.R. No. 79917).  Upon filing the
complaint, she caused to be recorded a Notice of Lis Pendens on the title of the property (p. 98, Rollo, G.R. No. 79917).

Without appointing a special administrator for Carmen’s estate,
the court caused summons to be served on the estate.  The summons was received by Remedios Muyot (Annex C, p. 60, Rollo, G.R. No. 79917).

On January 24, 1984,
the Cebreros registered the sale of the Sampaloc property to them and obtained TCT No. 158305 in
their names (p. 90, Rollo, G.R. No. 79917).

On February 6, 1984,
Josefina’s complaint was amended to implead Muyot and the Cebrero spouses as
additional defendants.  In addition to
the original causes of action, the amended complaint sought the nullification
of Muyot’s General Power of Attorney and the sale of
the Sampaloc property to the Cebrero
spouses (Annex G, p. 68, Rollo, G.R. No. 79917).

Atty. Laviña filed an Answer (later an
“Amended Answer with Compulsory Counterclaim”) for the Estate and Muyot (Annexes H and I, pp. 91 and 105, Rollo,
G.R. No. 79917).

Thereupon, Josefina filed a motion to disqualify him on the
ground that his authority as
counsel for Carmen was extinguished upon her death.  She also assailed the service of summons to
the decedent’s Estate through Muyot and reiterated her motion for the appointment of
a special administrator for the Estate. 
Atty. Laviña opposed the motions (Annexes K
and L, pp. 125 and 130, Rollo, G.R. No. 79917).

On September 23, 1986,
Judge Vicencio denied Josefina’s motion to disqualify
Atty. Laviña. 
He also denied the motion to
appoint a special administrator for the Estate “since the deceased left a
Will naming an administratrix (executrix), and the
latter has accepted the trust.” He sustained his court’s jurisdiction over
the Estate based on the service of summons upon Muyot
(Annex P, p. 179, Rollo, G.R. No. 79917).

On January 23, 1987,
Cebrero filed a motion to cancel the notice of lis pendens on the Sampaloc property (Annex B, Rollo,
G.R. No. 78295).  Before Judge Vicencio could act on it, Josefina filed a petition for certiorari
on February 6, 1987 in the Court of Appeals (CA-G.R. SP No. 11260) assailing
Judge Vicencio’s order of September 23, 1986 (Annex
P, p. 179, Rollo, G.R. No. 79919) and praying for a
writ of preliminary injunction to stop him from further proceeding in Civil
Case No. 83-21629 (Annex V, p. 236, Rollo, G.R. No.
79917).  The Court of Appeals issued a
restraining order on February 10, 1987,
ordering the lower court to “desist from proceeding with Civil Case No.
83-21629 until further orders.” (Annex W, p. 260,
Rollo, G.R. No. 79917.)

However, on March 16,
1987, in spite of the restraining order, Judge Vicencio
issued an order cancelling the notice of lis pendens (Annex
N, p. 170, Rollo, G.R. No. 78295) because he believed
the Appellate Court’s restraining order of February 10, 1987 expired on March 3, 1987, i.e., after 20 days.

On motions of Josefina (Annex O, p. 153, Rollo,
G.R. No. 79917 and Annex P, p. 178, Rollo, G.R. No.
78295), the Court of Appeals, on May 4, 1987, set aside Judge Vicencio’s order and required him, as well as his branch
clerk of court and Attorney Laviña to show cause why
they should not be punished for
contempt of court.  The Court of Appeals
held that the 20-day limitation on the life of a restraining order did not apply
to it but only to lower court “judges,” for Section 5 of BP Blg. 224 provides that:

“x x x,
the judge to whom the application for preliminary injunction was
made, may issue a restraining order to be effective only for a period of twenty days from date of
its issuance.  Within the said twenty-day
period, the judge must cause an order to be served on the
defendant, requiring him to show cause, at a specified time and place, why the
injunction should not be granted x
x x.”

While the Appellate Court
was aware that Section 8 of the Interim Rules uses the word “court”
instead of “judges,” it opined that:

“1.     x x x the Interim Rules was not meant to effect, modify or alter
BP 224 which took effect in 1982, subsequent to the enactment of BP
129, particularly so since BP 224 specifically governs the exclusive subject of restraining
orders, whereas the Interim Rules treats of the broad Judiciary Reorganization
Act of 1981.

“2.     BP 224 is a legislative act laying down a substantive
policy regulating the issuance and effectivity of
restraining orders issued by ‘judges,’ specifically decreeing a limitation
of 20 days to such orders of ‘judges.’

“The highest tribunal of the land in National Dental
Supply Co. vs. Bibiano Meer,
90 Phil. 265 x x x ruled in
no uncertain terms that the
Supreme Court in the exercise of its rule-making power cannot repeal or alter a
substantive piece of legislation.” (p. 49, Rollo, G.R. No. 78295.)

The Court of Appeals
further observed that the application of BP Blg. 224
to “judges” only “springs from practical considerations evident from the Rule itself.” (p. 51, Rollo, G. R. No. 78295.) It pointed out that:

“x x x. 
Rule 58, as amended by BP 224 requires — upon issuance of a restraining
order and within 20 days from said issuance — that ‘the
judge must cause an order to be served on the defendant, requiring him to
show cause, at a specified time and place, why the injunction should not be
granted, and determine within the same period whether or not the preliminary
injunction shall be granted . . .’ In other words, an actual hearing on the
application for injunction must
be scheduled; the parties must be notified thereof; and immediately thereafter,
the judge must resolve the application — all within twenty (20) days
from the date of issuance of the restraining order.  The clearly recognized implication being that
after said period — whether the parties have already received notice or not,
whether the hearing has been conducted or not — the restraining order if not
yet converted into an injunction by then, automatically self?destructs.  Certainly,
while these pressing time
and procedural constraints may reasonably be brought to bear upon the
Regional Trial Courts whose injunctive writs may be enforced only within the
narrow confines of their respective regions (Sec. 3[a], Interim Rules and
Guidelines), they cannot sensibly be imposed upon the Court of Appeals and the
Honorable Supreme Court whose territorial jurisdiction stretches to the many
ends of our broad archipelago.” (Underscoring supplied.) (pp. 51-52, Rollo, G.R. No. 78295.)

On May 26,
1987, Laviña, Muyot, and Cebrero filed in this Court a petition for certiorari
and prohibition (G.R. No. 78295) assailing that resolution. 
They prayed that the Court of Appeals be enjoined from
further proceeding in CA-G.R. SP No. 11260.

Without giving due course
to the petition, We ordered
the respondents to comment (p. 189, Rollo, G.R. No. 78295).

During the pendency of
G.R. No. 78295, and eleven (11) months after the Court of Appeals issued the
assailed order on May 4, 1987, this Court rendered a divided opinion in
another case, “Delbros Hotel Corporation vs. The
Intermediate Appellate Court, et al.” (G.R. No. 72566, April 12, 1988),
defining the scope of BP Blg. 224.  In a ten
to four decision with one
abstention, this Court held:

“The applicability of the above-quoted provision (Sec. 5, B.P. Blg.
224) to the then Intermediate Appellate Court, now the Court of Appeals, can
hardly be doubted.  The Interim Rules and
Guidelines were promulgated to implement the Judiciary Reorganization Act of
1981 (B.P. Blg. 129) which include the Intermediate
Appellate Court among the courts organized thereunder.  This is emphasized in the preamble of the
Interim Rules which states that the same shall apply to ‘all inferior courts
according to the Constitution.’ The term ‘inferior courts’ as used therein
refers to all courts except the Supreme Court, the Sandiganbayan
and the Court of Tax Appeals.  Thus,
paragraphs 14 and 15 of the Interim Rules expressly provide for ‘Procedure in
the Intermediate Appellate Court.’

“Indeed, if paragraph 8 of the Interim Rules were not
intended to apply to temporary restraining orders issued by the respondent
Court, there would have been absolutely no reason for the inclusion of said
paragraph in the Interim Rules.  The
limited life-span of temporary restraining orders issued by the regional trial courts and municipal trial
courts is already provided for in B.P. Blg. 224.  It was precisely to include the Intermediate
Appellate Court within the same limitation as to the effectivity
of its temporary restraining orders that B.P. Blg.
224 was incorporated in the Interim Rules, with the significant change of the
word ‘judge’ to ‘court,’ so as to make it clear and unequivocal that the
temporary restraining orders contemplated therein are those issued not only by
trial judges but also by justices of the appellate court.” (Delbros Hotel Corporation vs. Intermediate Appellate Court,
supra.)

This decision sustains
Judge Vicencio’s, not the Court of Appeals’,
interpretation of BP Blg. 224.  However, this circumstance does not excuse
his defiance of the Appellate Court’s restraining order, for the heart of the
issue in this case, is not whether the Court of Appeals correctly interpreted
BP Blg. 224, but whether petitioners’ disobedience of
the Appellate Court’s restraining order was contemptuous.  We hold that it was.

Before the promulgation
of the Delbros decision on April
12, 1988, there
existed no jurisprudence interpreting “judges” as used in BP Blg 224, to include the justices of the Court of Appeals
also.  Hence, even if Judge Vicencio thought that Court of Appeals justices were
covered by BP Blg. 224, out of respect for the second
highest court of the land, he should have obeyed its explicit mandate for him
to desist from proceeding with Civil Case No. 83-21629 “until further
orders.” His disobedience of that lawful order of the Court was
contemptuous (Sec. 3-b, Rule 71, Rules of Court).  His rushing to lift the
notice of lis pendens
barely four (4) days before his retirement from the Bench on March 20, 1987, and while his own jurisdiction in the case
was still in issue, puts his motives under a cloud.

If the petitioners wanted
the Court of Appeals to hear Josefina’s application for a preliminary writ of
injunction within twenty (20) days after it issued the temporary restraining
order, they should have filed a motion to that effect, or, they should have
asked the Court to limit the duration of its restraining order.  Instead, without notice to the other party or
to the Court of Appeals, they persuaded the trial judge to grant their pending
motion to cancel the notice of lis pendens.  The
secrecy that shrouded that maneuver is a badge of their bad faith and constitutes
contempt for the Appellate Court that issued the restraining order.

G.R. No. 79917. –

During the pendency of G.R. No. 78295 in this Court, the Court of
Appeals rendered a decision on September 15, 1987 in
CA-G.R. SP No. 11260, granting Josefina’s petition for certiorari,
prohibition and mandamus.  The dispositive part of its decision reads:

“WHEREFORE, based on all the foregoing considerations,
judgment is hereby rendered:  (1)
annulling the assailed order dated 12 January 1987 as well as its related
earlier order of September 23, 1986; (2) declaring that the lower court did not
acquire jurisdiction over the person of the estate of Maria Carmen P. Gabriel;
(3) ordering respondent Atty. Celso Laviña to refrain from representing the estate of the
deceased Maria Carmen P. Gabriel in Civil Case No. 83-21629; and (4) declaring
that all pleadings, motions and papers filed by Atty. Laviña
are sham and ordered expunged from the records of said case.

“Resolution of the contempt incident against respondent
judge, Atty. Laviña and the branch clerk of court of
respondent judge is hereby held in abeyance pending
the Supreme Court’s resolution of respondent’s petition for review.” (pp. 53-54, Rollo, G.R. No. 79917.)

Within the 30-day extension granted by this Court, Attorney Laviña, Remedios Muyot, and the Cebrero spouses
appealed by certiorari to this Court where their petition was docketed
as G.R. No. 79917.  The case was later
consolidated with G.R. No. 78295.

The Court of Appeals held that Attorney Laviña
may not appear “as counsel for the estate of Carmen P. Gabriel because his
authority as her counsel was extinguished upon Carmen’s death” (Art. 1919,
Civil Code).  It also held that
“respondent Remedios Muyot
was not capacitated to receive summons for the estate because the general power
of attorney constituting her as agent of the deceased became inoperative upon
the death of the principal.” The service of summons upon her was void (pp.
52-53, Rollo, G.R. No. 79917).

However, the Court held that a special administrator need not be
appointed for the estate in Civil Case No. 83­-21629 as the last will and
testament of Maria Carmen P. Gabriel had been allowed probate on 3 February
1987 in Sp. Proc. No. 84-23954 and letters testamentary had been issued to the
duly designated executrix, Concepcion M. de Garcia
(p. 54, Rollo, G.R. No. 79917), to represent the
Estate.

The petitioners allege in
their petition for review of the decision that the Court of Appeals
erred:

1.       in holding that the trial court had
not acquired jurisdiction over the estate of Carmen P. Gabriel; and

2.       in holding that Attorney Celso Laviña’s authority as counsel for Carmen P. Gabriel was
extinguished upon her death.

The petitioners’ argument that service of the
summons on Remedios Muyot
was valid and sufficient to vest jurisdiction in the Court over the Estate of Carmen P. Gabriel, because Muyot was Carmen’s attorney-in-fact, is not correct.  The estate of a dead person may only be
summoned through the executor or
administrator of his
estate for it is the executor or administrator who may sue or be sued (Sec. 3,
Rule 3, Rules of Court) and who may bring or defend actions for the recovery or
protection of the property or rights of the deceased (Sec. 2, Rule 87, Rules of
Court).  The general power of attorney
appointing Remedios as Carmen’s agent or
attorney-in-fact was extinguished upon Carmen’s demise (Art. 1919[3], Civil
Code; Ramos vs. Caoibes, 94 Phil. 440; Hermosa vs. Longara, 93 Phil. 977). 
Thereafter, Remedios was bereft of authority
to represent Carmen.

The petitioner’s
contention that the agency was “constituted in the common interest of the
principal and the agent” and that hence it was not extinguished by the
death of the principal (Art. 1930, Civil Code) is refuted by the instrument
itself which explicitly provided that
the powers conferred on the agent were to be exercised for the “sole benefit”
of the principal, Carmen P. Gabriel
(Annex D, p. 61, Rollo, G.R. No. 79917).

Carmen’s death likewise divested Attorney Laviña
of authority to represent her as counsel. 
A dead client has no personality and cannot be represented by an
attorney (Barrameda vs. Barbara, 90 Phil. 718, 723; Caisip vs. Hon. Cabangon, 109
Phil. 150).

WHEREFORE, finding no reversible error in the appealed
decision and orders of the Court of Appeals in CA-G.R. SP No. 11260, the
petitions for review are dismissed with costs against the petitioners.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Medialdea, JJ., concur.