Republic of the Philippines

REGIONAL TRIAL COURT

11TH Judicial Region
Branch __,
Davao City

BONIFACIO CRUZ
Counter-Defendant CIVIL CASE NO. R-
DVO-18-02373-CV

-versus- FOR: RESCISSION OF

CONTRACT or
REIMBURSEMENT OF
COST, DAMAGES AND
ATTORNEY’S FEES

FE TUADLES
Plaintiff

-versus-

MARCELO LARA and AURELIO LAXA

Defendants/Cross-defendants,

-versus-

RELIANCE GENERAL
INSURANCE COMPANY INC.,
3rd Part Defendant.
x----------------------------x

PRE-TRIAL BRIEF

COMES NOW, Defendant, Bonifacio Cruz, through the

undersigned counsel and unto this Honorable Court, respectfully
submits this Pre-Trial Brief:

I. BRIEF STATEMENT OF THE FACTS

That on December 13, 2019, defendant BONIFACIO

CRUZ, owner of Cimmaron Jeepney bearing Plate No. LXX-349

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brought his vehicle to the ULTRA Speed Machine Shop and A’s
Metal products for repair.

That on December 15, 2019 AURELIO LAXA, a driver

employed by A’s metal Products drove the vehicle, with his co-
workers on board and headed to the beach.

That in driving from the beach, AURELIO LAXA lost control

of the vehicle while negotiating a curve, causing it to turn turtle
resulting in the death of ROMEO TUALDES, a passenger.

That herein complaint is filed by plaintiff FE TUADLES

widow of ROMEO TUADLES who died in the said vehicular
accident.

II.
STATEMENT OF WILLINGNESS TO
ENTER INTO SETTLEMENT.

The Defendant, Bonifacio Cruz is willing to enter into an

amicable settlement under just terms and conditions.

III.
SUMMARY OF ADMITTED FACTS and PROPOSED
STIPULATION OF FACTS

a. The private complainant in this case is FE TUALDES;

b. The defendants are BONIFACIO CRUZ, MARCELO LARA and

AURELIO LAXA;

c. The fact and date of death of ROMEO TUALDES;

d. The private complainant is the widow of the late ROMEO

TUALDES;

e. That the defendant BONIFAIO CRUZ is the registered owner

of the Cimmaron Jeepney bearing Plate No. LXX-349, the
vehicle involved in the accident which caused the death of
ROMEO TUALDES;

f. That MARCELO LARA is the owner and sole proprietor of

ULTRA Speed Machine Shop and A’s Metal Products and the

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 employer of AURELIO LAXA, the driver of the Cimmaron
Jeepney bearing Plate No. LXX-349.

g. That AURELIO LAXA is a driver employed by A’s Metal

Products owned and operated by MARCELO LARA;

h. That there is failure to acquire jurisdiction over the person

of BONIFACIO CRUZ, MARCELO LARA, AURELIO LARA for
failure, in Paragraph 3 of the Complaint, to specifically aver
in particularity the legal capacity of the mentioned
defendants to establish their legal existence to be sued. The
aforesaid defendants were not properly specified where
they can be served the summons against. Failure to do so,
the Court cannot acquire jurisdiction over their person.
Herein case being adversarial in nature, the defendants in
the complaint must be personally served summons thereto
in those given address. The Court cannot be expected to
guess which addresses belongs to anybody without it being
specified in particularity.

i. That the acts complained of are as follows:

1. That on December 13, 2019, defendant BONIFACIO

CRUZ, owner of Cimmaron Jeepney bearing Plate No.
LXX-349 brought his vehicle to the ULTRA Speed
Machine Shop and A’s Metal products for repair.

2. That on December 15, 2019 AURELIO LAXA, a driver

employed by A’s metal Products drove the vehicle, with
his co-workers on board and headed to the beach.

3. That in driving from the beach, AURELIO LAXA lost

control of the vehicle while negotiating a curve, causing
it to turn turtle resulting in the death of ROMEO
TUALDES, a passenger.

j. That BONIFACIO CRUZ is the registered owner of the

Cimmaron Jeepney bearing Plate No. LXX-349;

k. That defendant BONIFACIO CRUZ denies being the

employer of LAXA; that CRUZ cannot be held directly liable
for any claim of damages related to the death of REMO
TUALDES on December 15, 2019.

l. That the incident happened after the perfection of the

AUTO-REPAIR CONTRACT between CRUZ and ULTRA Speed
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 Machine Shop and A’s Metal Products owned and managed
by LARA.

m.That the jeepney is already under the care and

responsibility of LARA and not by CRUZ who merely
deposited such vehicle under the care of LARA. That the
jeepney is already under the care and responsibility of LARA
and not by CRUZ who deposited such vehicle under the
former. That LAXA, the mechanic who drove the jeepney
resulting to the death of ROMEO TUALDES, is the employee
of LARA. That the incident happened when LAXA was
employed by LARA.

n. That LARA is not an agent of CRUZ. That there is no

contract of Agency between CRUZ and LARA. That the
delivery of the jeepney for repair in the shop of LARA does
not create a contract of agency. At most it can be
considered a BAILMENT RELATIONSHIP where the mechanic
is required to treat the vehicle with reasonable care while
observing extra-ordinary diligence to safeguard the purpose
of the contract. Any violations to the terms and agreements
thereto, the mechanic shall be held liable for any damages.
Additionally, most referring to the “Consumer Protection
Law.” That in this case LARA failed to exercise due diligence
in the selection of his employees when he allowed the
jeepney to be stolen by LAXA (his employee) under his
watch, protection, and care. Moreover, LARA is likewise in
bad faith when he failed to inform CRUZ on the incident
committed by his employee driving the jeepney without
permission and thereby meeting an accident.

o. That plaintiff TUADLES failed to state a cause of action,

thus, a valid ground for dismissal of the case without
prejudice:

a. That she failed to state a cause of action, thus a

valid ground for dismissal of the case without
prejudice.
i. That she failed to allege in particularity the
legal capacity and existence of the defendants
to be sued;
ii. That she failed to allege the address of the
defendants where they can be serve notices,
summons, and other legal process since the
action filed is adversarial in nature;
iii. That venue is improperly laid when the basis
of the complaint is based on the actionable
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 document but failed to attach nor append the
same to show proof thereon. Thus, the totality
of such claim cannot be ascertained that is
the basis of filing the venue of such
complaint.

p. That Plaintiff, FE TUADLES failed to comply the conditions

precedent of Baranggay Conciliation. Neither made general
averment thereto in the complaint nor given Certificate to
file action;

q. That Plaintiff FE TUADLES made a false verification as the

contents in the allegations made under oath when it alleged
the existence of an attempted settlement but in truth and in
fact it never happened; that it was a mere concoction.
Thus, this is without prejudice on the liability of perjury
committed as a consequence thereto. More s, the
Certification of Non-forum shopping is likewise defective
when it failed to follow the Rules on Notarial Practice. The
said Verification and Certification embedded in the one
document, although signed by the affiant TUADLES and her
counsel, the notarial book number, page number and
document number were in blank.

r. That defendant BONIFACIO CRUZ cannot be held liable to

the damages claimed for the Cimarron Jeepney having the
plate number LXX-349 and thereby received by MARCELO
LARA, the owner and sole proprietor of ULTRA Speed
Machine Shop and A’s Metal Products. On the same day,
CRUZ and LARA executed an AUTHO-REPAIR AGREEMENT
CONTRACT which provided, among others:

WHEREAS, the FIRST PARTY is the registered owner of a

silver Cimarron Jeepney with Plate no. LXX-349 with
certificate of registration DL04CAD8812;

WHEREAS, the SECOND PARTY as the service provider

shall fully indemnify the clients for loss or injury
occurring by reason of negligent acts, omission or willfull
conduct of the employer and his employees not in
accordance with the service agreed upon;

(COPY of the AUTO-REPAIR AGREEMENT CONTRACT is

herein attached as Anned “B”)

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s. That defendant LARA, committed Breach of Duty pursuant
to the AUTO-REPAIR AGREEMENT CONTRACT where the
terms and conditions therein indicated that upon delivery of
the vehicle and receipt by the shop personnel, the shop
upon acquiring possession thereto shall be required to treat
the vehicle with reasonable care and shall observe extra-
ordinary diligence to safeguard its purpose until release
thereof to the owner of the vehicle. In this instant, LARA
allowed his employee to steal the jeepney under his watch
and his protection. It cannot be denied that LARA
committed Breach of Contract with the jeepney involved in
the accident when it was supposed to be under repair and
shall be released to the owner (herein CRUZ) only and until
after the fulfillment of performance thereof as agreed upon;

t. That Defendant LARA, as the owner and sole proprietor of

the shop committed INTENTIONAL TORT when he
violated the safe return of the jeepney to CRUZ as the
registered owner thereof pursuant to their AUTO-REPAIR
CONTRACT and under CONSUMER’S PRETECTION LAW. The
contract further provides that, any violations of the terms
and agreements thereto, the shop shall be liable for any
damages. Hence LARA cannot outrun his liability and
obligations nor limit the scope of the same;

u. That Defendant LARA is likewise liable for the

REIMBURSEMENT OF COST of driving the jeepney
regardless of any waiver or disclaimer signed, as the case
may be. Since the unwarranted joyride of the jeepney was
without knowledge and consent of the registered owner and
involved in an accident which resulted to death of a person,
it shall be just and reasonable to compensate the owner
thereof. While the vehicle is in the shop’s possession, the
ownership thereto is not transferred nor conveyed. What
transpired was only a temporary transfer but for a limited
time and for a specified purpose only. It is evident, that the
joyride by the shop’s employee without knowledge and
consent is outside the ambit and purpose of the agreement;

v. That Plaintiff CRUZ diligently sent both written and oral

demand to Defendant LARA to comply with the provisions of
their agreement and pay the loss on the wreckage of the
jeepney he suffered based on the breach of contract and
Reimbursement of related costs thereto.

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 Copies of the Demand Letter and its proof of receipt
thereto are hereto appended as Annexes “C” and as
“C-1” respectively;

w. That Without any coherent or lawful reasons, the demand

mentioned in the preceding paragraph remained unheeded;

x. That Defendant AURELIO LAXA, Filipino, of legal age,

married, a resident of Block 7, Lot 10, Deca Homes, Mintal,
Davao City, where he may be served with summons and
processes of this Honorable Court, is the mechanic of the
jeepney and employee of MARCELO LARA in the shop;

y. That Defendant LAXA, as the mechanic of the jeep is

directly liable due to his negligent actions and for not
performing his duty reasonably. Thus, the unauthorized
performance of such act or omission indicates his intention
to defraud his customer (CRUZ) as evident by stealing the
jeepney without knowledge and consent. This is without
prejudice to his liability of Auto-theft committed as a
criminal charge thereto;

z. That Defendant LARA shall be SOLIDARY and JOINTLY

LIABLE. This is in line with the direct or immediate liability
of the employer and as to the unlimited scope of obligation
and liability by the shop owner to his customer under the
perfected contract. Since it is apparent that the employer
failed to exercise due diligence in the selection, supervision,
and discipline over his employees. It is just and equitable to
be directly liable as to the act or omission committed and as
to the breach of contract thereto. Thus, if it were not for the
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury or loss and without
which the result would not have occurred. Therefore, if it
was not because of the act or omission committed by LAXA
as PROXIMATE CAUSE thereto, the incident would not have
had occurred which resulted to the death of ROMEO
TUALDES, and the wreckage of the jeepney which supposed
to be under repair or in the event of completion be returned
to the registered owner. But in this case, the opposite
happened which cause the life of a person;

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 aa. The negligence and act of refusal to comply with the said
demand by the Defendants has caused and is causing
damage to CRUZ;

bb.The silver Cimarron Jeepney has an estimated value of one

million pesos only ( P1,000, 000.00);

IV. ISSUES TO BE RESOLVED

1. Whether or not the complaint states the cause of action

2. Whether or not the Court acquired jurisdiction over the
person of BONIFACIO CRUZ
3. Whether or not BONIFACIO CRUZ is deemed the employer
of the negligent driver
4. Whether or not BONIFACIO CRUZ is primarily and directly
liable for the accident
5. WON MARCELO LARA as the actual employer of the
negligent driver is liable as the agent BONIFACIO CRUZ

V. DOCUMENTS TO BE PRESENTED

1. Certified true copy of the Live Birth is herein attached

as Annex “A” and Census of Population and Housing
as Annex “A-1”
2. Certified true copy of the AUTO-REPAIR AGREEMENT
CONTRACT is herein attached as Annex “B”

3. Copy of the Demand Letter and its proof of receipt

thereto are hereto appended as Annexes “C” and as
“C-1” respectively;

4. Copy of the INSURANCE POLICY CONTRACT is herein

attached as Annex “D”

5. Copy of the RECEIPTS OF PAYMENT ON THE

INSURANCE POLICY CONTRACT is herein attached as
Annex “D-1”

The private complainant reserves the right to mark and

present other documentary evidences as well as Judicial
Affidavits (Jas) in the course of the court proceedings.

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 VI. WITNESSES TO BE PRESENTED

BONIFACIO CRUZ
- the registered owner of the silver Cimarron Jeepney;
- the substance of his testimony is to prove that:
i. LARA committed Breach of Duty pursuant
to the AUTO-REPAIR AGREEMENT
CONTRACT
ii. LARA is likewise liable for the
REIMBURSEMENT OF COST of driving the
jeepney regardless of any waiver or
disclaimer signed
iii. CRUZ diligently sent both written and oral
demand to Defendant LARA to comply with
the provisions of their agreement and pay
the loss on the wreckage of the jeepney he
suffered based on the breach of contract
and Reimbursement of related costs
thereto.

NADINE LUSTRE
- NSO Administrative officer to certify the authenticity of
the Live Birth presented as evidence.

JENSON LUMAYA
- Witness during the execution and signing of the AUTO-
REPAIR AGREEMENT CONTRACT;

LEGARIO WHIZI
- Insurance agent with knowledge on the INSURANCE
POLICY CONTRACT herein attached.

REPRESENTATIVE FROM GSIS

- The substance of his/her testimony is to prove that
Official Receipt of Toril Memorial Park, Inc. was
submitted to their office by Shela Mae Abellana as one
of the documentary requirements needed for the
application of a funeral benefit from the GSIS;
- The claim was released to the accused;

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The defendant BONIFACIO CRUZ reserves the right to present
additional witnesses.

VII. APPLICABLE LAWS

a. Statute Law;
b. Civil Code of the Philippines;
c. Revised Rules of Court;
d. Supreme Court Decisions.

VII. SCHEDULE OF HEARING

Trial dates to be stipulated and agreed upon by the parties

and subject to the availability of the court calendar.

PRAYER/RELIEF

WHEREFORE, premises considered it is most respectfully

prayed of this Honorable Court that this PRE-TRIAL BRIEF be
noted.

WHEREFORE, the defendant BONIFACIOCRUZ be absolved

from the payment of the damages claimed and Attorney’s Fees
and be held the Cross-Defendants jointly and severally liable to
pay to the heirs and assigns of ROMEO TUALDES for any
damages to be awarded.

WHEREFORE, the RELIANCE GENERAL INSURANCE COMPANY

INC., shall be held liable in the Alternative to pay the damages
covered by the Insurance Policy Contract as the insurer of the
Cimarron Jeepney stated above. Thus, it is pursuant to the Right
of Subrogation of Insurer to the right of the insured against
wrongdoer. This is without prejudice for Reimbursement claim
against the tortfeasors as well as on the deficiency not covered
therein.

Further, such other relief deemed just and equitable under

the premises are likewise prayed for.

RESPECTFULLY SUBMITTED at Davao City, Philippines,

this____ day of __________.
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 BOSS LAW FIRM
Counsels for the Plaintiffs
Door 13, Leonora Complex,
Tahimik Street, Davao City
(082) 286 1246
bosslaw@gmail.com

ATTY. NEIL DANTE BABAN

Roll of Attys. No 63947
IBP OR No. 018135-12-04-17- Davao City
PTR OR No. 9883584-01-03-18- Davao City
MCLE Compliance No. V – 0022191; issued on June 14, 2018

ATTY. FRANCIS JERIC L. EMUY

Roll of Attys. No. 65269
IBP OR No. 01833-12-04-17- Davao City
PTR OR No. 9883585-01-03-18- Davao City
MCLE Exempt (Admitted to the BAR June 17, 2018)

ATTY. LOUIS F. PALMA GIL

Roll of Attys. No 61777
IBP OR No. 01836-12-05-17- Davao City
PTR OR No. 9883588-01-04-18- Davao City
MCLE Compliance No. V – 0022251; issued on August 2, 2016

ATTY. DARCY MAI REPOLIDON-SABIO

Roll of Attys. No 54786
IBP OR No. 01839-12-05-17- Davao City
PTR OR No. 9883111-01-04-18- Davao City
MCLE Compliance No. V – 0020098; issued on March 9, 2016

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 Copy Furnished:

1. AMADOR BULAN Received by:_______________

Unit 4, Mabuhay Building, Date:_______________
Agdao, Davao City
(beside Millennial Hardware
and Auto Supply Co.)

2. ROLANDO SUIZO Received by:_______________

Lot No. 83 Brgy. Patay, Date:_______________
Agdao, Davao City

3. FIRST INTEGRATED BONDING Received by:_______________

AND INSURANCE Date:_______________
COMPANY INC.,
Door 1, Aimishi Building,
Bacaca Road, Davao City, Philippines

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