REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
BRANCH 000, PASAY CITY

RICHARD T. GOMEZ,
Plaintiff,

- versus - Civil Case No. Q-00-69000

For: Sum of Money with
Damages

RICHARD T. JIMENEZ,
Defendant.
x----------------------------------------------x

M E M O RANDUM
(for the PLAINTIFF)

Plaintiff, by and through undersigned counsel, unto this Honorable

Court most respectfully submit this MEMORANDUM in support of their
appeal in the above-entitled case and aver as follows:

I
TIMELINESS
Plaintiff, by counsel, received the Notice dated November 10, 2016 on
November 13, 2016 and have fifteen (15) days therefrom or until November
27, 2016 within which to file this Memorandum. Hence, this Memorandum is
seasonably filed.

II
PARTIES

Plaintiffs – RICHARD T. GOMEZ of legal age, married, Filipino

citizens with residence and postal address at Block 2 Lot 7, Phase 5, Palmera
Homes Solaire, Diosdado Macapagal Avenue, Baclaran, Pasay City.

Defendants – RICHARD T. JIMENEZ of legal age, married, Filipino

citizens with a residence and postal address at 0140 E Left Mercury Street,
Diamond Village, Brgy. Anabu V, Imus, Cavite
 III
THE CASE

This is a case for Collection of Sum of Money with Damages brought

by the Plaintiff against the Defendant which arose from the failure of the
Defendant to settle its monetary obligation from the Plaintiff.

III
STATEMENT OF FACTS

Plaintiff is engaged in the business of supplying and distributing

construction materials to different hardware stores. Defendant
was one of its customers. Defendant Jimenez offered to sell a
parcel of land located at Vallejo, California to Plaintiff
amounting to TWENTY MILLION SEVEN HUNDRED
THOUSAND PESOS (Php 20,700,000.00) sometime on April
23, 2013. Said purchase was properly substantiated by a Contract
of sale with the obligation that the defendant will secure a
clearance from the Bureau of land Management and demolish the
structure located therein marked as Annexes B to II in the
Complaint. Out of the above-mentioned indebtedness,
Defendant was not able to comply with the obligation explicitly
provided on the contract even though the Plaintiff already
complies with his obligation in paying the amount of the parcel
of land.

Verbal and written demands were made to the Defendant to

settle/return the abovementioned amount with corresponding
interest of 6% compounded annually be imposed on the
TWENTY MILLION SEVEN HUNDRED THOUSAND
PESOS (Php 20,700,000.00) to which Defendant Jimemnez
agreed and promised to return within 60 days through a signed

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 response letter. On October 31, 2016, a demand letter was served
personally to the Defendant Jimenez to settle the obligation as
soon as possible and if unable to make full payment defendant
was given an option to make an arrangement. Copies of demand
letter dated October 31, 2016 is hereto attached as Annex “L”.
Unfortunately, despite due demands, Defendant unjustifiably
failed and refused to settle his above-obligations to the damage
and prejudice of the Plaintiff.

Plaintiff was thus constrained to file a case for Collection for

Sum of Money with Damages against the Defendant. In sum,
Plaintiff is seeking to recover the amount of Php 31,426,000.00
as Actual Damages plus other damages and expenses.

III
ISSUES

WHETHER OR NOT THE DEFENDANT IS LIABLE TO PAY THE

AMOUNT OF Php 31,426,000.00 TO THE PLAINTIFF.

II

WHETHER OR NOT THE DEFENDANT IS LIABLE TO PAY THE

FOLLOWING AMOUNT AS DAMAGES TO THE PLAINTIFF:

a. Php 100, 000.00 as Compensatory Damages;

b. Php 100,000.00 as Moral Damages;
c. Php 50,000.00 as Exemplary Damages;
d. Attorney’s fees/ Acceptance fees equivalent to Php 200,000.00 and
litigation expenses approximately Php 100,000.00.

IV
ARGUMENTS AND DISCUSSIONS

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The Defendant is liable to pay the
amount of Php 31,426,000.00 to the
Plaintiff.

It is undisputed that the Defendant received a payment from the

contract of sale that the Plaintiff and Defendant entered with the total amount
Twenty Million One Seven Hundred Thousand Seven Hundred pesos (PhP
1,158,737.24). The said transactions were properly supported by the contract
itself and the receipt which were presented, identified and marked as Exhibits
“B” to “II” and were formally offered as documentary evidence for the
Plaintiffs.

Likewise, prior to the filing of the instant case, Plaintiffs made written
demand against the defendant to settle or return the amount on his monetary
obligations (Exhibit “JJ”). Defendant agreed and promised that he will return
the amount within 60 days through a signed response letter. However, the
Defendant did not comply to settle or return the amount. So another demand
letter was sent by the plaintiff to the defendant personally dated October 31,
2016 but still fail to settle the above-obligations (Exhibit “LL”).

During trial, Defendant never questioned these transactions as well as

the amount which is clear indicia that the Defendant acknowledges his
indebtedness to the Plaintiffs. Thus, defendant had an obligation to pay to the
plaintiffs.

Under Article 1156 of the Civil Code provides that:

“An obligation is a juridical necessity to give, to do or

not to do.”

Clearly, there was an obligation on the part of the Defendant to deliver

the parcel of land and to do specific actions provided in the contract to the
Plaintiff. The fact that the Defendant promised to deliver the parcel of land to
the Plaintiffs creates a corresponding obligation on plaintiff’s part to pay the

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said obligation upon demand made by the Defendant. The Contract of sale
and receipts of purchase show the existence of the transactions entered into
between the Plaintiffs and the Defendant. These receipts and Contract of sale
(Exhibits “B” to “II”) are the proof of sales being detailed statements of the
nature, quantity and cost of the thing delivered and sold by the defendant to
the plaintiff. Further, the defendant’s obligation to pay became due and
demandable after series of written demands were made and his subsequent
failure to settle/pay his (defendant) monetary obligation was indicative that
there was a deliberate attempt on the part of the Defendant to evade his
unpaid monetary obligations.

The non-payment or non-return of the outstanding account of the

defendant would only result to unjust enrichment since the Defendant
received the payment for the parcel of land from the Plaintiffs and the failure
to deliver the parcel of land and the failure to return the payment because of
non-delivery of the same will only enrich the Defendant at the expense of the
Plaintiffs.

In the case of Car Cool Philippines, Inc vs. Ushio Realty and
Development Corporation, G.R No. 138088 (January 23, 2006) the
Supreme Court held that:

“We have held that “there is unjust enrichment when a

person unlawfully retains money or property of another against
the fundamental principles of justice, equity and good
conscience”. Article 22 of the Civil Code provides that “every
person who through an act or performance by another, or any
other means, acquires or comes into possession of something at
the expense of the latter without just or legal ground shall retain
the same to him”. The principle of unjust enrichment under
Article 22 requires two conditions: (1) that a person is benefited
without valid basis or justification, and (2) that such benefit is
derived at another’s expense or damage.”

To allow Defendant not to pay his outstanding obligation to the

plaintiffs would amount to unjustly enrichment. The deliberate refusal to pay

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on the part of the defendant necessarily prejudiced the rights of the Plaintiffs
and caused damage to the plaintiffs likewise acquired the same item and paid
for their costs and plaintiffs were unduly deprived to earn or bank roll the
amount of the unpaid monetary obligation of the defendant.

It must be stressed that the Plaintiff that the payment of the parcel of
land received by Defendant from the Plaintiffs are substantial. Hence, the
failure on the part of the Defendant to pay or return the amount will result to a
substantial loss of capital and unrealized income on the Plaintiffs. Thus, it was
crucial that the Defendant must be made to pay for his obligation since the
Plaintiffs entered into a transaction with him with utmost good faith and that
the Defendant was evidently in bad faith when the same deliberately refused
to return or settle his monetary obligation after due demands with him were
made.

The Defendant is liable to pay

Damages to the Plaintiff.

It is undoubted that the Defendant had an obligation to settle her

monetary obligation with the Plaintiffs. Unfortunately, despite repeated
demands, the same was not settled. It is therefore evident that the delay in the
payment of the monetary obligation clearly prejudiced the Plaintiffs. Since the
Plaintiffs are engaged in the business of supplying and distributing
construction materials to different hardware stores, the amount not settled by
the defendant could have been applied to his business. Thus, the non-payment
of the monetary obligation by the Defendant clearly resulted to an unrealized
income on the part of the Plaintiff.

It is but only proper that the Plaintiffs should be entitled for damages
that they sustained on account of the failure and refusal on the part of the
Defendant to settle his monetary obligation which had long become due and
demandable.

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 This is in consonance with what is provided for under Article 1170 of
the Civil Code which provides that:

“Those who in the performance of their obligations

are guilty of fraud, negligence, or delay and those in any
manner contravene the tenor thereof, are liable for damages.”
(Emphasis Ours)

Plaintiffs suffered actual damages in amount of Twenty Million Seven

Hundred Thousand Pesos (Php 20,700,000.00) which the defendant refused
to return or settle. The said value represents the principal amount of the parcel
of land purchased by the plaintiff to the said Defendant which he failed to
return after failure to deliver the parcel of land.

This finds support under Article 2199 of the Civil Code which
provides that:

“Except as provided by law or by stipulations, one is

entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages.”

As mentioned ealsewhere, the receipt/ contract of sale served as

evidence for the actual monetary liability of the defendant to the plaintiffs.

In addition with the actual damages, the defendant is likewise liable to

pay legal interest thereon computed from the time of his default. Under
Article 1169 of the New Civil Code provides that:

Those obliged to deliver or to do something incur in

delay from the time the obligee judicially or extrajudicially
demands from them the fulfillment of their obligation.
(Emphasis supplied)

The following are the requisites to wit:

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 (1) that the obligation be demandable and already liquidated;
(2) that the debtor delays performance; and
(3) that the creditor requires the performance judicially or
extrajudicially.

All the aforesaid requisites are present. The unpaid obligation of

defendant is already liquidated as the same is with a fixed pecuniary value in
the amount of Twenty Million Seven Hundred Thousand pesos (PhP
20,700,000.00) plus the corresponding interest of 6% compounded annually
to be imposed leaving the total balance or unpaid obligation of the defendant
in the aggregate amount of Thirty-One Million Four Hundred Twenty-Six
Thousand Pesos (Php 31,426,000.00). There is delay on the part of the
Defendant as she refused to settle the said amount despite the lapse of a
reasonable period of time from receipt of the demand letter to pay and/or
settle the same (Exhibit “LL”). Hence, it is imperative that the Plaintiffs also
should be entitled Compensatory Damages amounting to One Hundred
Thousand Pesos (Php 100,000.00) or interests.

As a result of the failure on the part of the Defendant to settle her

monetary obligation, the Plaintiffs suffered anxiety and sleepless nights. The
mere fact that the Plaintiffs had to resort to court action to be able to collect
the unpaid obligation of the Defendant seriously brought anxiety to the
Plaintiffs and hence, the award for moral damages in the amount of not less
than One Hundred Thousand Pesos (Php 100,000.00) should be awarded to
the Plaintiffs.

In the case of Rudigario C. Gatmaitan vs. Dr. Ricardo B. Gonzales,

GR No. 149226 (June 26, 2006), it was held therein that:

“ As to the claim for an award of moral and exemplary

damages, the rule consistently held and frequently applied by
this Court is that moral damages are recoverable only when the
acts complained of are attended by bad faith or fraud, or

8
 constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy. This Court
has consistently upheld the view that bad faith does not simply
mean negligence or bad judgment. It involves a state of mind
dominated by ill-will or motive. It implies a conscious and
intentional design to do a wrongful act for a dishonest purpose
or some moral obliquity.”

Thus, consistent with the above-mentioned ruling of the Supreme

Court, Exemplary Damages should be awarded to the Plaintiffs considering
that there was evident bad faith on the part of the Defendant when he
attempted to abscond from the Plaintiffs. The mere fact that the Defendants
refused to pay her monetary obligations to the Plaintiffs strongly indicate that
there was intent to prejudice the Plaintiffs and that the Defendant wanted to
unjustly enrich herself at the expense of the Plaintiffs. The ill-will on the part
of the Defendant was evident when he deliberately ignored the demands made
by the Plaintiffs after the latter showed their trust on him by letting the
Defendant to make an arrangement if Defendant cannot pay the full amount in
onetime payment. The above-mentioned act of the Defendant in attempting to
abscond from his obligation should not be tolerated by this Honorable Court.
It is therefore proper that the amount of at least One Hundred Thousand Pesos
(Php 100,000.00) by way of correction of the wrongful act committed by the
Defendant.

This is also consistent in the case of Doris Sunbanun vs. Aurora Go,
GR No. 163280 (February 2, 2010) whereby it held that:

“ Exemplary Damages may be awarded when a wrongful

act is accompanied by bad faith or when the defendant acted in
a wanton, fraudulent, reckless, oppressive, or malevolent
manner which would justify an award of exemplary damages
under Article 2232 of the Civil Code.”

When the Defendant refused to heed to the demand made by the

Plaintiffs to settle his obligation, the Plaintiffs were constrained to the legal
remedies provided for by law for them to be able to collect the Defendant’s

9
unpaid monetary obligation. Hence, it is also but proper that the Defendant
should be made liable to pay for Attorney’s Fees equivalent to twenty five
percent (25%) of the amount recovered from the Defendant plus the sum of
Five Thousand Pesos (Php 5, 000.00) per diem per hearing. It must be noted
that if not for the deliberate refusal on the part of the Defendant to settle her
obligation, the attorney’s fees and the expenses for the litigation for this case
would not have occurred.

PRAYER

WHEREFORE, premises considered, Plaintiffs most respectfully pray

to this Honorable Court that judgment be rendered in favor of the Plaintiffs
and against the Defendant, ordering Defendant to pay the plaintiffs the
following:
1. The amount of Thirty-One Million Four Hundred Twenty-Six
Thousand Pesos (Php 31,426, 000.00) plus legal interest thereon
computed from the time of default as actual damages;
2. The amount of at least One Hundred Thousand Pesos (Php 100,
000.00) as Compensatory Damages;
3. The amount of at least One Hundred Thousand Pesos (Php
100,000.00) as Moral Damages;
4. The amount of at least Fifty Thousand Pesos (Php 50,000.00) as
Exemplary Damages;
5. The amount to be paid as Attorney’s Fee in the sum equivalent to
Twenty-Five Percent (25%) of the amount recovered from
defendants plus the sum of Five Thousand Pesos (Php 5, 000.00) per
diem per hearing; and

6. Cost of Suit.

Such other reliefs and remedies as are just and equitable under the
foregoing circumstances are likewise prayed for.

December 4, 2016. Taguig City for Pasay City

THE LAW FIRM OF EBUEN AND ASSOCIATES

Counsel for the Plaintiff
Suite 1003, Penthouse
Union Square Condominium
No. 145 15th Bonifacio Global City, Taguig

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 Tel Nos. 877-3900 / 421-0000 (Telefax)

by:

JAYA P. EBUEN
IBP Lifetime No. 61000 / Q.C.
PTR No. 8450000/ 01-03-07 / Q.C.
Roll No. 46000

VERIFICATION

I, RICHARD T. GOMEZ, of legal age, Filipino citizen with postal

address at Block 2, Lot 7, Phase 5, Palmera Homes Solaire, Diosdado
Macapagal Avenue, Baclaran, Pasay City, after having been duly sworn to in
accordance with law, hereby depose and state, That:

1. I am the Plaintiff in the above-entitled case.

2. I have caused the preparation of the foregoing Position Paper.

3. I have read and understood the contents, and the said contents thereof
and hereby affirm that the same are true and correct as of my own personal
knowledge, belief and based on official or authentic records.

IN WITNESS WHEREOF, I have affixed my signature below this ___ day

of November 2016 at Taguig City, Philippines.

RICHARD T. GOMEZ
Plaintiff

SUBSCRIBED AND SWORN TO before me this ___ day of November

2016 at Taguig City, Philippines. Affiant, RICHARD T. GOMEZ, personally
appeared and exhibited to me her Identification Card No. SS No. 33-8183334-
6 issued by Social Security System.

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Doc. No. ______; Notary Public
Page No. _____;
Book No. ______;
Series of 2016

Copy Furnished:

ATTY. KENNETH C. SUBARAN

Counsel for the Defendant
________________________
RM. 42/F Padre Damaso Bldg. ________________________
Brgy. San Jose, Dasmariñas City
Province of Cavite

WRITTEN EXPLANATION

Due to distance and lack of manpower at this time, the copy of the foregoing
pleading was served to the other party by registered mail in lieu of the
preferred mode of personal service. This explanation is made in compliance
of the 1997 Rules of Civil Procedure.

JAYA P. EBUEN

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