Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
MICHAEL YAP,
Defendant
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COMPLAINT
PLAINTIFF, by counsel, respectfully states:
1. Plaintiff is a domestic corporation, duly organized and existing under Philippine
law, with address at 5th Floor, Life Bldg., 101 Rizal Avenue, Makati City
2. Defendant Michael Yap is of legal age, married, Filipino and with address at
No.19 Pandan St., Meadow Subdivision, Quezon City.
3. On May 27, 2009, plaintiff and defendant entered into three contracts of sale. The
first contract was for colored profile amounting to One Million Eight Hundred Six
Thousand and Eight Hundred Twenty Five Pesos and Thirty-Eight Centavos
(Php. 1,806,825.38), copy of the contract is hereto attached as Annex A.
4. The second contract was for the purchase of mosquito screen amounting to Eight
Hundred Ninety One Thousand Five Hundred Twelve Pesos and Seventy-Eight
Centavos (Php. 891,512.78).
5. The third contract was for the purchase of additional colored profile amounting to
Five Hundred Forty Nine Thousand Five Hundred Sixty Nine Pesos and ThirtyNine Centavos (Php. 549,569.39).
6. Among those agreed upon by the plaintiff and the defendant were the terms of
payment, which are as follows: fifty per centum (50%) as down payment of the
contract price upon signing of the quotation forty per centrum (40%) after
fabrication and before delivery and the remaining ten per centum (10%) one
week after complete installation and project turn over.
7. On June 5, 2009, defendant paid plaintiff its first Metrobank Check No. 2060517
in the amount of Nine Hundred Thousand Pesos (Php. 900,000.00) as fifty
percent (50%) down payment for the first contract for colored profile. As
acknowledgement of the receipt of the check, plaintiff issued Provisional Receipt
No. 2716, a copy of which is hereto attached as Annex B.
8. On June 6, 2009, defendant paid plaintiff its Metrobank Check No. 2060538 in
the amount of Three Hundred Thousand Pesos (Php. 300,000.00) as fifty percent
(50%) down payment for the second contract for mosquito screen. As
acknowledgement of the receipt of the check plaintiff issued Provisional Receipt
No. 2733, a copy of which is hereto attached as Annex C.
9. On August 14, 2009, defendant paid Four Hundred Twenty Three Thousand Nine
Hundred Fifty Three Pesos and Sixty Centavos (PhP. 423,953.60) as fifty percent
(50%) down payment for the third contract for colored profile, as
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1. the sum of Three Hundred Twenty Four Thousand Seven Hundred Ninety
Pesos and Ninety-Three Centavos (Php. 324,790.93) representing the
remaining unpaid balance of the colored profile and mosquito screen;
2. legal interest accruing from the date of the complaint;
3. the sum of P50,000.00 as and by way of attorneys fees; and
4. costs of suit.
Other reliefs just and equitable under the circumstances are likewise prayed for.
Makati City, 24 September 2012.
ALAN A. LAHUG
Counsel for Plaintiff
MICHAEL YAP,
Defendant.
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ANSWER WITH COUNTERCLAIM
Undersigned defendant, in answer to the complaint, respectfully alleges:
ADMISSIONS
1. Paragraphs 1 and 2;
2. Paragraphs 3,4,5,6,7,8,9,10,11,12 and 13, subject to the Affirmative Defenses
hereinafter set forth;
3. Paragraph 15 with respect to plaintiffs letter subject to the Affirmative Defenses set
forth below;
DENIALS
4. Paragraph 14, the truth being that repeated complaints on plaintiffs workmanship
and defective installation were made by the plaintiff which were all ignored by the
latter as amplified in the following Affirmative Defenses;
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5. Paragraph 15 concerning the validity of plaintiffs claim, the truth being that its
defective and deficient installation and workmanship violated its contractual
obligation to herein defendant which justifies the withholding of the retained 10% of
the contract amount.
6. Paragraphs 16 and 17, the truth being that a few days after installation, defendant
noticed and received complaints of plaintiffs defective installation and workmanship
which multiplied as days wore on for which reason he called the attention of the
plaintiff several times with demands for remedial measures which were all ignored
by it. The retained 10% of the contract price is a pittance compared with the hefty
construction cost of defendants house and the only reason for defendants refusal to
release the same is plaintiffs continued refusal to fulfill its obligation which is a precondition for said release;
7. Paragraph 18, for lack of knowledge or information as to its truth.
Moreover, assuming plaintiff did in fact engage the services of counsel, it alone
should bear expenses thereon for resorting to this suit in bad faith in order to evade
performance of a valid, existing and long delayed obligation;
8. Paragraph 19, for lack of knowledge or information sufficient to form a belief as to its
truth;
By way of
AFFIRMATIVE DEFENSES
defendant respectfully alleges:
9. All the foregoing material allegations are reproduced as part hereof;
10. The complaint states no cause of action;
11. The complaint is pre-mature because the retained 10% of the subject contract price
becomes due only after the plaintiff shall have complied with its own contractual
obligation of complete, defect-free and satisfactory installation of the material
purchased which it failed to do despite repeated demands.
In fact, surprised at the temerity of the plaintiff, defendant responded to its
lawyers letter by informing its counsel of his long unanswered complaint with a
repeated demand that plaintiff remedy the installation defects earlier brought to its
attention;
Copy of said reply-letter dated September 17, 2012 is attached hereto as
Annex1;
When plaintiff again failed and refused to respond as it is wont to every
time defendant would remind it of its faulty installation and workmanship, defendant
ASSIGNED CASE: TRAINING ON RULES 22&24 DRAFT RULES OF CIVIL PROCEDURE
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14. All the foregoing material allegations are reproduced as part hereof;
15. Plaintiff should be directed to favorably act on defendants complaint, remedy and
fix its defective installation;
16. Plaintiffs bad faith and its obstinate refusal to correct its defective workmanship and
installation have caused the plaintiff inconvenience and anxiety that entitle him to
moral damages in the amount of P200,000.00;
17. In order to deter others from following plaintiffs footsteps it should be condemned to
pay exemplary damages in the amount of P200,000.00;
18. In order to protect his right wantonly violated by the plaintiff the plaintiff who had the
temerity to file headlong this baseless suit, plaintiff was constrained to engage the
service of counsel for P50,000.00; and
19. The malicious institution of this suit exposes defendant to litigation expenses in the
amount of not less than P50,000.00:
PRAYER
WHEREFORE, defendant respectfully prays that after notice and trial, this Hon.
Court render judgment dismissing the complaint and ordering plaintiff:
1. to correct its defective installations of the materials defendants purchased from it;
and
2. to pay defendant the following:
a) P200,000.00 as oral damages;
b) P200,000.00 as exemplary damages
c) P50,000.00 as attorneys fees ;and
d) P50,000.00 as litigation expenses.
Other legal and equitable reliefs are also prayed for.
ASSIGNED CASE: TRAINING ON RULES 22&24 DRAFT RULES OF CIVIL PROCEDURE
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MICHAEL YAP,
Defendant.
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JUDICIAL AFFIDAVIT
I, EDU RODRIGUEZ, Filipino, of legal age, single, with address at 5 th Flr. Life
Building, Rizal Ave., Makati City, after being duly sworn and subscribed to in
accordance with law, being supervised and examined by Atty. Alan Lahug with
address at Valero Tower, Valero St., Salcedo Village, Makati City, in support of the
allegations in the Complaint, hereby answer the following questions fully conscious
that I am under oath, and that I may face criminal liability for false testimony or
perjury.
ATTY. ALAN A. LAHUG: The testimony of the witness, Edu Rodriguez, is to prove
the causes of action pleaded by plaintiff in its Complaint, to identify documents and
other related matters.
1. Q: Please state your name and other personal circumstances?
A: I am Edu Rodriguez, Filipino, of legal age, single and with address at 5 th
Flr. Life Building, Rizal Ave., Makati City.
2. Q: Do you know plaintiff Aerostar Building Solutions, Ins.?
A: Yes, sir. I am its President.
3. Q: Can you describe your duties and responsibilities as President of plaintiff?
A: I am in charge of its overall operations.
4. Q: What business is plaintiff engaged in?
A: Plaintiff is engaged in the business of supplying, delivery and installing
doors, frames, and/or windows of high imported quality, as well as color
profile and mosquito screen.
5. Q: Do you know the Michael Yap, the defendant in this case?
A: Yes sir. Defendant is a client of plaintiff.
6. Q: When did defendant become a client of plaintiff?
A: On May 27, 2009, plaintiff and defendant entered into three contracts of
sale. The first contract for colored profile amounted to One Million Eight
ASSIGNED CASE: TRAINING ON RULES 22&24 DRAFT RULES OF CIVIL PROCEDURE
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Hundred Six Thousand Eight Hundred Twenty Five Pesos and Thirty Eight
Centavos (P1,806,825.38)
7. Q: Do you have a copy of the first contract?
A: Yes, sir. I have here the first contract, which has been previously marked
as Exhibit A.
8. Q: You mention three contracts, what is the second contract?
A: The second contract was for the purchase of mosquito screen amounting
to Eight Hundred Ninety One Thousand Five Hundred Twelve Pesos and
Seventy Eight Centavos (P891,512.78).
9. Q: How about the third contract, for what is it and how much is the amount?
A: The third contract was for the purchase of additional colored profile,
amounting to Five Hundred Forty Nine Thousand Five Hundred Sixty Nine
Pesos and Thirty Nine Centavos (549,569.39).
10. Q: What were the terms of payments agreed upon by the parties?
A: Among those agreed upon by the plaintiff and the defendant were the
terms of payment, which were as follows: fifty per centum (50%) as down
payment of the contract price upon signing of the quotation, forty per centum
(40%) after fabrication and before delivery and the remaining ten per centum
(10%) one week after complete installation and project turn over.
11. Q: Pursuant to the agreed terms of payment, what happened, if any?
A: On June 5, 2009, defendant paid plaintiff its Metrobank Check No.
2060517 in the amount of Nine Hundred Thousand Pesos (P900,000.00) as
fifty percent (50%) down payment for the first contract for colored profile. As
acknowledgement of the receipt of the check, plaintiff issued Provisional
Receipt No. 2716, which has been previously marked as Exh. B.
12. Q: Then, what other payment, if any were made by defendant?
A: On June 6, 2009, defendant paid plaintiff its Metrobank Check No.
2060538 in the amount of Three Hundred Thousand Pesos (P300,000.00) as
fifty percent (50%) down payment for the second contract for mosquito
screen. As acknowledgement of the receipt of the check, plaintiff issued
Provisional Receipt No. 2733, which has been previously marked as Exh. C.
13. Q: What else happened afterwards, if any?
A; On August 14, 2009, defendant paid Four Hundred Twenty Three
Thousand Nine Hundred Fifty Three Pesos and Sixty Centavos
(P423,953.60) as fifty percent (50%) down payment for the third contract for
colored profile. As
acknowledgement of the receipt of payment, plaintiff
issued Provisional Receipt No. 2846, which has been previously marked as
Exh. D.
14. Q: After defendant has paid plaintiff the foregoing amounts, what, if any, did
plaintiff do?
A: On August 18, 2009, August 26, 2009 and September 5, 2009, plaintiff
delivered the colored profiles and mosquito screen to the residence of
defendant, as evidenced by Exh. E, Exh. F and Exh. G which have been
previously marked.
15. Q: After the delivery of the colored profile and mosquito screen to the
residence of defendant, what, if any, did plaintiff do?
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ATTESTATION
I, ATTY. ALAN A. LAHUG, do hereby state that I faithfully recorded or caused
to be recorded the questions I asked and the corresponding answer that the
witness gave and neither I nor any person then present coached the witness
regarding the answers.
ATTY. ALAN A. LAHUG
SUBSCRIBED AND SWORN to before me this 27 th day of January 2014 at Makati City, affiant Edu Rodriguez,
showing his CTC No. 5678123 issued at Makati City on January 20, 2014 and affiant Atty. Alan A. Lahug showing
his Passport No. EB0000011 issued on May 1, 2010, who are known to me and I certify that they are the same
persons who personally signed before me the foregoing instrument.
NOTARY PUBLIC
Doc. No.
Page No.
Book No.
Series of 2014
Copy furnished:
Atty. Roberto Bermudo
Counsel for Defendant
Mandaluyong City
WRITTEN EXPLANATION: Due to time constraints and for lack of messenger personal service is not practicable
and service by special courier has to be resorted to.
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Money
MICHAEL YAP,
Defendant.
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JUDICIAL AFFIDAVIT OF
MICHAEL H. YAP
I, MICHAEL H. YAP, of legal age, married and a resident of No. 19, Pandan
St., Meadow Subdivision, Quezon City, after being duly sworn hereby give the
following answers to the direct examinations of ATTY. ROBERT C. BERMUDO in his
office at 123 Maysilo Circle, Mandaluyong City, fully conscious that I am under oath
and that I may face criminal liability for false testimony or perjury.
Atty. Bermudo:
The following testimony of Mr. Michael H. Yap, is being offered to prove the
allegations in his Answer with Counterclaim, as well as to identify various
documents.
1.
A2.
A-
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A-it is not a simple case of not wanting to pay the balance. The
amount is ready and at anytime can be given to plaintiff. Our contract calls for a
mutual obligation. Plaintiff must comply with its obligation to properly install the
screen doors and windows and then I will pay.
18. Q- Before your lawyer letters, Exhs. 1 and 2, were there any written communication
between you and the plaintiff?
A- I could not recall but I am certain is that I have made constant demands and
reminders to plaintiff to fix the defective installations before I release the retained
10% which is our agreement.
19. Q- Why was no further action resorted to by you on plaintiffs refusal to fix the
defective screen doors and windows?
A- I was on the brink of giving up on the plaintiff that it would ever comply with my
demand and I planned on engaging another company using the retained amount to
fix what plaintiff did not want to do when I received the letter of demand from the
plaintiffs lawyer, which I promptly responded to thru my lawyer.
20. Q- After the filing of the Complaint, was there any instance when plaintiffs
representative visited your residence?
A- Yes, sir, when we had our JDR before Hon. Judge Santos, the plaintiffs president,
Mr. Edu Rodriguez, admitted the existence of the defective installations and we had
an agreement for him to personally come to our house to see for himself the
problem.
21. Q- What happened during his visit?
A- I pointed to him the defective screen windows and doors and he promised to send
his personnel to do repair works but they were able to fix a window or two and
thereafter stopped and notwithstanding my request for them to come over and finish
their work, nothing further happened.
22. Q- How did you feel about plaintiffs violation of your agreement and its subsequent
refusal to make amends?
A- I was bothered how a supposedly reputable firm like plaintiff would be that indifferent
to a very simple request. I even told my wife that we would not have this problem if
she did not insist in engaging the services of plaintiff because at that time I had
another firm in mind but my wife insisted in getting plaintiff.
23. Q- This house, where plaintiff made these defective installations, how much did it
cost you to build it?
A- Over a hundred million pesos with the plaintiffs defective installations being
definitely a spoiler.
24. Q- For plaintiffs breach of its obligation, how much are you asking from the court?
A- A very minimal moral damages of Php200,000.00 and another Php200,000.00 as
exemplary damages to serve as a warning not to follow plaintiffs footsteps.
25. Q- What is your agreement with your lawyer in handling your defense?
A- I paid him initially Php50,000.00 apart from the Php5,000.00 I pay him every court
appearance.
26. Q-Did you incur any other expenses in connection with this complaint?
A- Yes, sir, in coming to and from this Hon. Court and other thing related to this suit
which I estimate to be not the less than Php50,000.00 before this case is finally
terminated.
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27. Q- Do you affirm and confirm the truthfulness and veracity of the answers you gave
to the questions propounded on you?
A- I do.
28. Q- And that you gave these answers willingly, without any person coaching you?
A- Yes, sir.
29. Q- The documents you identified, do you also affirm and confirm their aunthenticity?
A- Yes, sir.
30. Q- Are you willing to affix your signature on this judicial affidavit?
A- I do.
Atty. Bermudo:
That will be all for the witness.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 3 rd day of May 2014 at
Mandaluyong City.
MICHAEL H. YAP
Affiant
SUBSCRIBED AND SWORN to before me this 3 rd day of March 2014 at Mandaluyong City, affiant
exhibited to me an acceptable government-issued ID, copy of which is attached hereto, bearing his
picture and signature, attesting to his true identity as the same person who executed the foregoing
JUDICIAL AFFIDAVIT.
NOTARY PUBLIC
Doc. No.
Page No.
Book No.
Series of 2014
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