Case # 29 - Zosa

AC No. 4904, August 12, 2004

ANA A. CHUA and MARCELINA HSIA, Complainants, v.
ATTY. SIMEON M. MESINA, JR., Respondent.
Topic: Canon 1, Rule 1.01, Rule 1.02
Facts:
1. Ana Chua and Marcelina Hsia were business partners.
2. Atty. Simeon Mesina Jr. is the legal counsel of the Chua
spouses.
3. The Chua spouses are also lessees of a building in Burgos
St., Cabanatuan and another property in Melencio St.,
Cabanatuan. The owner of these properties is the mother of
Atty. Simeon Mesina, Jr., Mrs. Mesina.
4. Mrs. Mesina mortgaged these properties in favor of Planters
Development Bank to secure a loan.
5. Mrs. Mesina failed to pay the bank. Her son convinced the
Chua spouses to help her mother, and in exchange, the
Melencio property would be sold to them at P850/Sqm.
6. The spouses and their business partner accommodated the
request and paid the bank in the amount of Php983, 125.40.
7. Mrs. Mesina executed a Deed of Absolute Sale, dated Jan 19,
1985, in favor of complainants.
8. The complainants were made to pay the capital gains tax so
they consulted Atty. Mesina about it.
Capital Gains Tax is a tax on the profit when you sell (or 'dispose of')
something (an 'asset') that's increased in value. It's the gain you make that's
taxed, not the amount of money you receive.

9. He suggested that they execute another Deed of Absolute

Sale, antedated to 1979, before the effectivity of the law
mandating the payment of capital gains tax.
10. Another Deed was executed by Mrs. Mesina, in favor of
complainants, in the purchase price of Php85, 400, antedated to
Feb 9, 1979.
11. After liquidating the transactions that occurred, Mrs.
Mesina was found to have an existing debt balance to the
spouses in the amount of Php400, 000.
12. Atty Mesina acknowledge the obligation to be his and
undertook to settle it within two years. On Jan 21, 1986, a title
over the Melencio property was issued to the complainants.
13. A certain Juanito Tecson filed an Affidavit in Feb 20, 1986,
charging Mrs. Mesina, the complainants, for Falsification of
Public Document and violation of the Internal Revenue Code.

Tecson alleged he was also a lessee of the Melencio

propertyand was supposed to also purchase it along
with the complainants
Tecson want on to relate that the Feb 9, 1979 Deed did
not reflect the tue value of the Melencio property and
was antedated to eveade payment of capital gains tax

14. Atty. Mesina proposed that the complainants simulate a

deed of sale of the Melencio property wherein complainants
would resell it to Mrs. Mesina, dated April 1, 1986.
15. A new title was accordingly issued on Aprl 4, 1986 in the
amount of Php85, 400.00 in favor of Felecisima Melencio.
The owners copy was entrusted to complainants.

16. Tecson filed an Affidavit of Desistance alleging that his

filing of the criminal complaint arose out of mere
misunderstanding and difference and that he had no sufficient
evidence.
17. On May 2, 1990, Atty Mesina approached complainants
and tols them he would borrow the owners copy of Mrs.
Mesinas titled with the promise that in 4 months, he would let
Mrs. Mesina execute a deed over the MElencio property in
favor of the complainants:
I promise to and undertake to have the Deed of Sale of the above-mentioned
property in favor of Ana Chua and Marcelina Hsia to be signed by Mrs.
Felicisima Mesina, within four (4) months from date hereof.

18. Mrs. Mesina died in the early part of 1991. Transfer of title
was never effected. The Melencio property was being offered
for sale to the public.
19. The spouses and Hsia filed on Aug 24, 1992 a complaint
against Atty Mesina and his two siblings before the RTC of
Nueva Ecija for Declaration of Nullity of Sale and
Reconveyance of Real Property.
20. At the time of the filing of this administrative complaint in
1998, the civil case against the Mesina siblings was still
pending.
21. By Resolution of July 13, 1998, the Court directed Atty
Mesina to file Comment on the complaint within 10 days.
22. By Resolution of Dec 2, 1998, the Court required Atty.
Mesina to comment on the complaint, noting that the complaint
sent to him at his office in Bel-Air on July 13, 1998 was
returned unserved with the notation, Moved. The Court
however considered the Jul 13 Resolution served on Atty

Mesina by substituted service pursuant to Rule 13, Sec 8, Rules

of Civil Procedure 1997. Atty. Mesina was accordingly deemed
to have waived the filing of the required comment.
23. Thru Res of Dec 2, 1998, the case was referred to the IBP
for investigation, report and recommendation.
Issue: Whether or not Atty. Mesina is guilty of violating Canon
1.
Decision: YES, he is guilty
1. Complainants filed on April 1, 2002 their position paper with
a. photocopies of checks paid to the Planters Dev. Bank
b. Affidavit of Atty. Mesina acknowledging the Php400,
000 debt to the spouses
c. Deed of Absolute Sale dated Jan 19, 1985
d. Deed of Absolute Sale dated July 9, 1979 issued to the
complainants on Jan 21, 1986
e. Affidavit of Juan Tecson
f. Deed of Absoliute Sale dated Apr 1, 1986, executed by
complainants in favor of Mrs. Mesina
g. Complaint of Chuan and Hsia, Facts#19
2. The Respondent never appeared but the IBP deemed the case
submitted for report and recommendation given the length of
the time that the case.
3. The Court finds Atty, Mesina is guilty of GROSS
MISCONDUCT for
a. advising complainants to execute another Deed of Absolute
Sale antedated to 1979 to evade payment of capital gains taxes,
he violated his duty to promote respect for law and legal
processes, and not abet activities aimed at the defiance of the

law; that he intended to defraud not only a private party but the
government is aggravating.
b. convincing complainants to execute a simulated Deed of
Absolute Sale wherein thay made it appear that complaintsnts
reconveyed the Melencio property to his mother, he committed
dishonesty.
c. inveigling his own clients into turning over to him the
owners copy of his mothers title upon misrepresentation that
he would, in 4 months, have a deed of sale executed by his
mother in favor of complainants, he likewise committed
dishonesty.
4. In Nakpil vs Valdez, As a rule, a lawyer is not barred from
dealing with his client but the business transaction must be
characterized with utmost honesty and good faith. The
measure of good faith which an attorney is required to exercise
in his dealings with his client is a much higher standard that is
required in business dealings where the parties trade at arms
length.
5. In fine, the Respondent violated his oath of office and more
specifically, the following canons of the Code of Professional
Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.Rule 1.02. - A lawyer shall not
counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD

THE INTEGRITY AND DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
Rule 7.03. - A lawyer shall not engage in conduct that
adversely reflects on his fitness to practice law, nor shall he,
whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.
CANON 15. A LAWYER SHALL OBSERVE CANDOR,
FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND
TRANSACTIONS WITH HIS CLIENTS.
Rule 15.07. - A lawyer shall impress upon his client
compliance with the laws and the principles of fairness.
CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE
OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE
TRUST AND CONFIDENCE REPOSED IN HIM.
6. Wherefore, Atty. Simeone M. Mesina Jr. is, for gross
misconduct, hereby Disbarred.
Section 6. Personal service. Service of the papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in his office with his clerk or with a person
having charge thereof. If no person is found in his office, or his office is not known, or he has
no office, then by leaving the copy, between the hours of eight in the morning and six in the
evening, at the party's or counsel's residence, if known, with a person of sufficient age and
discretion then residing therein. (4a)
Section 7. Service by mail. Service by registered mail shall be made by depositing the copy
in the post office in a sealed envelope, plainly addressed to the party or his counsel at his
office, if known, otherwise at his residence, if known, with postage fully prepaid, and with
instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered.
If no registry service is available in the locality of either the senders or the addressee, service
may be done by ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)
Section 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders
and other papers cannot be made under the two preceding sections, the office and place of
residence of the party or his counsel being unknown, service may be made by delivering the

copy to the clerk of court, with proof of failure of both personal service and service by mail.
The service is complete at the time of such delivery. (6a)