REPUBLIC OF THE PHILIPPINES )
) SS.
AFFIDAVIT OF MERIT
I, VICENTE B. JINGCO, of legal age, married, Filipino and with
residence at Redd Manor Bldg., Dolores Heights Subd., Dolores, City of San
Fernando, Pampanga, after having been duly sworn in accordance with law,
depose and state that –
1. I am the petitioner in the above-entitled Petition for Certiorari
and Prohibition under Rule 65 with Application for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction.
2. In a Complaint dated May 16, 2019 for “Damages for Breach of
Contract” filed by private respondents SPOUSES PERLITO C. RAZON and
IRAIDA M. RAZON against me, they alleged that I committed breach of
contract in the construction of their drive-in motel project in Bacolor,
Pampanga and prayed as follows:
“WHEREFORE, the above premises considered, it is respectfully
prayed of this Honorable Court after hearing on the merits, that
Defendant be ordered to pay the following:
a. Actual damages: TWO MILLION EIGHT HUNDRED
FORTY SEVEN THOUSAND AND THREE PESOS and
84/100 (Php 2,847,003.84)
b. Moral damages for the amount of TWO MILLION PESOS
(Php 2,000,000.00);
c. Liquidated damages for the total amount of ELEVEN
MILLION TWO HUNDRED FIFTY SIX THOUSAND PESOS
(Php 11,256,000.00)
d. Exemplary damages for the amount of FIVE HUNDRED
THOUSAND PESOS (Php 500,000.00)
e. Attorney’s fees in the amount equivalent to TWENTY
FIVE PERCENT (25%) of the total amount to be
adjudged in favor of plaintiffs;
f. The cost of this suit.”
3. The Complaint dated May 16, 2019 was docketed as Civil Case
No. 14807 and raffled to Branch 43 presided over by the public respondent
judge.
4. I have valid and meritorious defense. As set forth in my Answer
with Counterclaim:
“2. The structures subject matter of the first and second
contracts constitute the drive-in motel project of plaintiffs and is
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embodied in only one set of construction plans. It is pre-programmed
as one project as in fact it is covered by only one Building Permit.
3. Plaintiffs were the ones who offered to defendant to
undertake the construction of the drive-in motel project as it was also
defendant who constructed plaintiffs’ residential house and their
poultry houses in Magalang, Pampanga. Plaintiffs would not have
contracted defendant to undertake the drive-in motel project had
defendant been not kind to them and competent.
4. Plaintiffs requested that they start first with the
structures under the first contract because of budgetary constraint
and in fact, plaintiff even asked discount from the defendant as the
construction cost for first contract was supposed to be more than
₱28,000,000.00 and not only ₱26,500,000.00.
5. It was only in the latter part of April 2017 that defendant
was able to perform works in full blast because defendant was kept
waiting by the plaintiffs and their consultant for the construction
plans duly signed by a licensed engineer and these were required for
the issuance of the Building Permit, Sanitary Plumbing Permit and
Electrical Permit. Plaintiff’s consultant even asked a loan from
defendant just for the consultant to be able to pay the fees of a
licensed engineer willing to sign the plans. Copies of the Building
Permit, Sanitary Plumbing Permit and Electrical Permit all issued on
April 27, 2017 are hereto attached as Annexes “1”, “2’ and “3”,
respectively.
6. According to plaintiffs, as regards the second contract
signed in July 2017, defendant enticed plaintiff Perlito C. Razon to say
“yes” for the construction of Bldgs. D and E by undertaking “to
construct, for free and without cost to Plaintiff, the roofing and trusses
of the Parking Area of the Admin. Bldg. and the laundry area, as well
as the pavementing and concreting of the laundry area.” This is not
true. If defendant would not be able to finish the work on the first
contract as also alleged by plaintiffs, then why still give defendant the
second contract?
7. Truth is, after the second contract was signed, plaintiffs
were not then able to pay the 25% down payment for the second
contract and they requested defendant to withhold execution of works
due to the fact that plaintiffs’ poultry business was affected by the
outbreak of bird flu and their finances were affected. It was only on
August 2, 2017 that plaintiffs gave a check which was even post-dated
August 30, 2017. Thereafter, plaintiff Perlito C. Razon even requested
that it be deposited on September 12, 2017. This is shown by
defendants’ Bankbook, a copy thereof is hereto attached as Annex “4”.
Defendant then did not anymore ask to amend the second contract as
he was dealing in good faith and thought all the while that he and
plaintiffs have a friendly relationship.
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8. During the combined construction process under the first
and second contracts, plaintiff Perlito C. Razon made repeated
requests for additional works and for adjustments and re-adjustments
of works already done. He had no resident manager on site and he
personally came and went to check on the works done almost on a
weekly basis. In the process, he almost and always asked for works to
be adjusted, re-adjusted and re-done according to his taste and liking
and requested additional works not included in the plans. Dealing in
good faith, defendant accommodated him and this became plaintiff’s
practice and he acted as if he employed the workers who had to follow
his personal instructions. As a result, the project timeline was no
longer followed but it became an open-ended situation as the works
were subjected to plaintiff’s personal whims.
9. Also, plaintiffs were the ones always in delay in settling
the progress billings. It had been the practice of plaintiffs not to pay
upon receipt of the progress billings. They would withhold the billings
for days and then they would issue checks which are even post-dated.
Naturally as a consequence of late payments, acquisition of materials
and work performance and accomplishments were affected. A
Summary of Payments and Progress Billings showing all the amounts
billed and received by defendant in the construction of the drive-in
motel project are hereto attached collectively as Annex “5”. As shown
in the Summary of Payments, the payments were always delayed and
there are still unpaid balances of ₱3,617,777.76 and ₱2,089,908.39 for
the first and second contracts, respectively, or a total of ₱5,707,686.15.
10. As regards the Hyundai Starex Van, due to the financial
set back that plaintiffs were experiencing as a result of the bird flu
outbreak they offered to defendant the vehicle as payment. Defendant
did not want the vehicle because defendant has enough vehicles for
him and his family. Later on, the parties agreed that the value of the
vehicle be just set-off from the retention money. In this regard, the
assertion of plaintiffs that they made overpayment is misplaced.
11. As regards the structures under the first contract, they
were actually finished as of December 31, 2017 such that they were
already available for plaintiffs to install their interior furnishings.
However, testing and commissioning of the water system could not be
undertaken because plaintiffs failed to install on time their primary
and secondary borehole wells whereas defendant has even
constructed the cistern even though this was not included in the
contract and in the plans. Per verification with Cortez Trading which
was engaged by plaintiff to install borehole wells, the primary well
was completed only in June 2018 while secondary well was completed
only in September 2018 and the last payment was on October 23, 2018
as per Official Receipt No. 5044, a copy thereof is hereto attached as
Annex “6”.
12. Also, there was a time when the Bureau of Fire
Protection required plaintiffs to have a sprinkler system in the drive-in
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motel project and the interior works were disrupted waiting for such
sprinkler system. Eventually, plaintiffs were not able to provide the
sprinkler system because of the substantial cost involved and it was
even through defendant’s initiative and plea to the Bureau of Fire
Protection that fire extinguishers be allowed in the meantime.
13. While defendant was undertaking re-touching works and
some minor adjustments on the structures under the second contract,
plaintiff, through counsel, suddenly sent a letter dated August 10,
2018 giving defendant until August 31, 2018 “to make complete turn-
over of the two projects, after complying with all that is contained in
the punch list, and additionally pay penalties and the opportunity loss
that were sustained by my client.” A copy of the letter dated August
10, 2018 is hereto attached as Annex “7”.
14. Defendant, through counsel, then sent to a reply letter
dated August 29, 2018, setting forth the following:
“Dear Atty. Roque:
This is a reply to your letter dated August 10, 2018
addressed to my client Mr. Vicente B. Jingco and which was
received by his staff on August 15, 2018 while my client was in
Baguio visiting there his other projects.
Actually as of date of your letter, the remaining works
being undertaken by my client in the main project of Mr. Perlito
C. Razon consisted only of just re-touching works and some
minor adjustments on Buildings D and E. As regards Buildings
A, B and C, they have long been finished even before the date of
your letter such that they have been already available for Mr.
Razon’s interior furnishings. Per report of my client’s personnel,
it is only now that Mr. Razon is installing intercom system,
headboard panels and other interior works.
Meanwhile, last August 17, 2018, Buildings D and E were
95% completed for which my client has a progress billing in the
amount of ₱1,454,823.81. In this connection, my client hereby
demands immediate payment of said amount and attached
hereto is the corresponding billing.
Actually by now, however, Buildings D and E are
substantially completed with only few minor works remaining.
Please consider that due to the intermittent onslaught of
typhoons and habagat rains coupled by the fact that Mr. Razon
has coincided installation of intercom system, headboard
panels and other interior works in the said buildings thus
disrupting the work activity of my client, my client may need
few days beyond August 31, 2018 to complete the said minor
works.
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Meanwhile, other works that might have been told to you
by Mr. Razon are additional works not included in the original
plans which Mr. Razon requested and which my client were
even undertaking for free. These should not be included in the
punch list and my client is discontinuing these works due to the
unexpected pressure now being asserted by Mr. Razon. My
client was really surprised when he read your letter after he
arrived from Bagiuo as all the while he thought he and Mr.
Razon have good rapport to each other.
My client is God-fearing, known in the community as a
leader of religious organizations and it is very unlikely that he
would unfairly take advantage of others.
My client takes exception to your statement that he
breached the terms and conditions of the construction
contracts. If ever, the delay was caused by several factors
attributable to Mr. Razon.
Mr. Razon made repeated requests for additional works
and for adjustments and re-adjustments of works already done.
Mr. Razon has no resident manager on site and he personally
came and went to check on the works done almost on a weekly
basis. In the process, Mr. Razon almost and always asked for
works to be adjusted, re-adjusted and re-done according to his
taste and liking and requested additional works not included in
the plans. Dealing in good faith, my client accommodated Mr.
Razon despite the fact that the budget cost for the project was
not for first class. This became Mr. Razon’s practice and he
acted as if he employs the workers who had to follow his
personal instructions. Thus, the project timeline was no longer
strictly followed but it became an open-ended situation as the
works were subjected to Mr. Razon’s personal whims.
There was also the time that Mr. Razon requested my
client to slow down the works due to the fact that his poultry
business was affected by the outbreak of bird flu and his
finances were affected. On this point, it was even my client who
constructed the chicken houses in the poultry farm of Mr. Razon
and my client very well accomplished the same. Mr. Razon thus
knew the caliber of my client and befriended him. Indeed, Mr.
Razon would not have contracted my client to undertake his
motel project had my client been not kind and competent.
Another matter was the delay of Mr. Razon in securing
the building permits. My client even made financial advances so
that these were eventually issued.
Also, there was the time when the Bureau of Fire
Protection required Mr. Razon to have a sprinkler system in the
project and the interior works were disrupted waiting for such
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sprinkler system. Eventually, Mr. Razon was not able to provide
the sprinkler system because of the substantial cost involved
and it was even through my client’s initiative and plea to the
Bureau of Fire Protection that fire extinguishers be allowed in
the meantime.
It is not also true that Mr. Razon paid on a periodic
billing basis. Rather, it has been his practice that he withheld
un-acted the billings and then only after repeated reminders he
would issue checks which he even made post-dated for one
month.
Verily, my client has done for Mr. Razon more than what
their contracts provide. My client cannot think of any reason as
to why all of a sudden Mr. Razon is imposing a short deadline
and ascribing delay on the part of my client when he knows
very well that the project is already substantially complete and
ready for his interior furnishings, other than probably to avoid
the incoming billings. On this point, my client in fact has still
substantial amount to be collected from Mr. Razon other than
the aforesaid ₱1,454,823.81. Thus, it is absurd that my client
would delay the project as this would also entail delay his
collections.
With all the foregoing being said, my client hopes that
this matter is now clarified and he reiterates his demand for the
immediate payment of the amount of ₱1,454,823.81. Please
take note that my client is not waiving collections of other
amounts due him under the circumstances.”
A copy of the reply letter dated August 29, 2018 is hereto
attached as Annex “8”.
15. The parties’ counsels then had a meeting on September
4, 2018 followed by exchange of letter communications dated
September 7, 2018, September 10, 2018, and September 17, 2018,
copies thereof are hereto attached as Annexes “9”, “10” and “11”,
respectively.
16. Subsequently, the parties and their counsels had a
meeting at the project site on September 18, 2018. During the
meeting, a query was asked what date that defendant could finish
whatever item is in the punch list. After discussion, it was then the
consensus that plaintiff would prepare the punch list and then
defendant will evaluate the punch list and determine what item is
doable or acceptable and those that are not before he could say the
date then being asked.
17. Indeed, plaintiff through counsel sent a letter dated
September 26, 2018 with an attached Punch List and a deadline of
until October 15, 2018 for defendant to complete the same (please see
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Annex “C” of the Complaint) which is contrary to what was agreed
upon during the meeting on September 18, 2018.
18. Thus, defendant through counsel sent a reply letter dated
October 8, 2018 (please see Annex “C” of the Complaint), stating that:
“Dear Atty. Roque:
This pertains to your letter dated September 26, 2018 with
attached punch list other than those items mentioned in the
letter.
I vividly remember that during our meeting on
September 18, 2018 at the project site, a query was asked what
date that my client could finish whatever item is in the punch
list. After discussion, it was then the consensus that your client
would prepare the punch list and then my client will evaluate
the punch list and determine what item is doable or acceptable
and those that are not before he could say the date then being
asked. It is thus quite perplexing as to why Mr. Razon
immediately set up a deadline of until October 15, 2018 in your
letter, contrary to what has been understood during the
meeting.
Anent the items stated in your letter and in the attached
punch list, kindly refer to the punch list with remarks of my
client and attached to this letter. According to my client, all
doable items would be finished by October 31, 2018 as long as
there is no happening of circumstances beyond his control.
Please take note also that my client is already in the
process of facilitating the issuance of the occupancy permit and
there are just some requirements being awaited by the Bureau
of Fire Protection to be complied by Mr. Razon. My client’s
representative and Mr. Razon are in constant communication
on this matter.
Lastly, my client is reiterating his progress billing
amounting to ₱1,454,823.81 which has long been due. My client
demands that this amount be paid within a period of ten (10)
days from receipt of this letter. My client is willing to finish the
items enumerated in your letter dated September 26, 2018 only
although they are not included in the plans should Mr. Razon
pay this amount within the said period.
Thank you once again for your kind consideration.”
19. As admitted by plaintiffs in their Complaint, they
instructed the workers of defendant to cease working effective
October 16, 2018.
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20. As plaintiffs took over the remaining items in the Punch
List, defendant sent plaintiff a Statement of Account dated November
5, 2018. In the receiving copy, plaintiff wife wrote “Note: Wrong
computation, invalid charges.” A copy of this Statement of Account is
hereto attached as Annex “12”.
21. Plaintiffs failed and refused to settle the said account
and instead sent defendant the letter dated November 8, 2018 (please
see Annex “G” of the Complaint).
22. Defendant has acted in good faith in dealing with
plaintiffs and as shown by the foregoing, plaintiffs have no valid cause
of action for damages and breach of contract against defendant.
23. Without admitting liability, the amount being claimed by
plaintiffs is even excessive and shocking to the conscience.
24. As it appears, plaintiffs are the ones liable to defendant
for works done in the project including those that are not even
included in the plans but were requested by plaintiffs to be
constructed.
25. If plaintiffs would be allowed to have their baseless and
unfounded claims, it would result to unjust enrichment on their part
which is not allowed under the law and equity.
26. The instant action did not undergo the mandatory
requirement of barangay conciliation prior to its filing in court
considering that the parties are natural persons and reside in the
same city. Hence, the Complaint should be dismissed outright.
COUNTERCLAIM
27. Defendant re-pleads all the foregoing as part of his
counterclaim.
28. Plaintiffs are still liable to pay defendant the amount of
₱5,707,686.15 for items accomplished and done in the drive-in motel
project which are included in the plans.
29. Likewise, defendants introduced additional works in the
project which are not included in the plans but were requested by
plaintiff. In this regard, the work descriptions and cost amounting to
₱3,895,498.00 are shown in the Additional Works, a copy thereof is
hereto attached as Annex “13”.
30. Because of the filing of this baseless and unfounded
action, defendant has suffered and is still suffering anxiety, sleepless
nights, and besmirched reputation for which he should be
compensated by the plaintiffs in the amount of at least ₱2,000,000.00
as moral damages.
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31. Defendant was also constrained to engage the services of
counsel to protect his interest for which he incurred the amount of
₱100,000.00 plus ₱3,000.00 per appearance and 20% of the award as
attorney’s fees, which plaintiffs should be ordered to reimburse and
pay to defendant.
32. To avoid similar actions in the future and to serve as an
example to the public, plaintiffs should likewise be ordered to pay
defendant the amount ₱500,000.00 as exemplary damages.
33. Lastly, defendant was compelled to litigate for which he
incurred and will continue to incur the amount of ₱20,000.00 as
litigation expenses plus any increase thereof during the pendency of
the case.”
5. After I filed my Answer with Counterclaim, private respondents
filed their Reply (with Motion to Set Case for Pre- Trial).
6. On November 15, 2019, a Notice of Preliminary Conference
dated September 20, 2019 was received by my counsel setting the case for
“preliminary conference” on November 26, 2019 at 10:30 in the morning.
7. On November 22, 2019, my counsel simultaneously filed: 1) a
Motion to Set Case for Preliminary Hearing on the Affirmative Defense; and
2) a Motion to Cancel Preliminary Conference.
8 During the hearing on November 26, 2019 attended by a
collaborating counsel, the public respondent judge noted that the filing of
the Motion to Set Case for Preliminary Hearing on the Affirmative Defense
and my counsel was given five (5) days within which to file a Manifestation
submitting my residential address while the private respondents’ counsel
was given ten (10) days from receipt of the Manifestation within which to
file Comment/Opposition.
9. In the corresponding Order dated November 26, 2019, the
aforesaid incidents that transpired on November 26, 2019 were particularly
mentioned. It was also indicated that the pre-trial conference was reset to
February 11, 2020.
10. On December 2, 2019, my counsel filed the Manifestation. It
was filed on December 2, 2019 because the fifth day which was December
1, 2019 was a Sunday.
11. On December 6, 2019, my counsel received an Order dated
September 20, 2019, stating:
“Issues having joined, set the case for pre-trial
on November 26, 2019 at 10:30 in the morning and
issue the Notice of Pre-trial.
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Furnish all concerned parties with copy of the
Order.
SO ORDERED.”
12. On December 12, 2019, my counsel received private
respondents’ Comment/Opposition pursuant to the Order dated November
26, 2019.
13. During the hearing on February 11, 2020, my counsel prayed
that he be given time to file Reply to the Comment/Opposition in lieu of
presenting testimonial evidence in support of the Motion to Set Case for
Preliminary Hearing on the Affirmative Defense. He was then given five (5)
days within which to file such Reply while private respondents’ counsel was
given same period from receipt of the Reply within which to file a
Rejoinder. The pre-trial conference was also reset to April 14, 2020. This is
reflected in in the Order dated February 11, 2020.
14. On February 17, 2020, my counsel filed the Reply. It was filed
on February 17, 2020 because the fifth day which was February 16, 2020
again fell on a Sunday.
15. On February 28, 2020, private respondents’ Rejoinder was
received by my counsel.
16. On August 25, 2020, my counsel received the assailed Order
dated July 8, 2020). The public respondent ruled:
“The ‘Plaintiff’s oral motion to consider defendant’s failure to
file the pre-trial brief at least 3 days before November 26, 2019 as a
failure to appear at the pre-trial,’ is hereby GRANTED.
Therefore, the Court hereby DECLARES that defendant’s failure
to file the pre-trial brief shall have the same effect as failure to appear
at the pre-trial pursuant to the last paragraph of Section 6, Rule 18 of
the Rules of Civil Procedure.”
17. On September 9, 2020, my counsel filed a Motion for
Reconsideration (of the Order dated July 8, 2020) with attached Pre-Trial
Brief (ad cautelam) (Annex “B”).
18. On October 30, 2020, my counsel received by email the assailed
Order dated October 5, 2020. He received the hard copy on November 4,
2020). In this Order, public respondent denied the admission of the Pre-
trial Brief (ad cautelam). She ruled:
“Lastly, with respect to the defendant’s Motion to Admit the
attached Pre-trial brief (ad cautelam) into the records, no valid
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justification or reason was offered therefor so that the same be
admitted and considered by the Court.”
19. There was no mention in the Order dated November 26, 2019
about an “oral motion” from private respondent’s counsel that petitioner’s
failure to file pre-trial brief be considered as failure to appear at the pre-
trial.
20. The Transcript of Stenographic Notes dated November 26,
2019 and Transcript of Stenographic Notes dated February 11, 2020 also
revealed that there was actually no such “oral motion” made by private
respondent’s counsel.
21. Moreover, the public respondent found meritorious the
affirmative defense of non-compliance with prior barangay conciliation. In
fact, she referred the case to the barangay for conciliation and ordered the
suspension of the proceedings. Yet, she ruled that petitioner’s failure to file
pre-trial brief is considered as failure to appear at the pre-trial thereby
allowing in effect private respondents to present their evidence ex-parte.
22. The records will show that my counsel still submitted our Pre-
Trial Brief and there is no prejudice on the part of the private respondents if
the same would be admitted.
23. As pointed out above, I have valid and meritorious defense and
counterclaim against the private respondents.
24. t would be the height of injustice and miscarriage of justice if
respondents would not be immediately restrained from acting pursuant to
the Orders dated July 8, 2020 and October 5, 2020 insofar as such Orders
allow private respondents to present evidence ex-parte and effectively
deprive me of the right to actively participate in the trial, confront the
witnesses and evidence against me and to present my own evidence.
25. I am, therefore, most humbly appealing for the authority of the
Honorable Court of Appeals to immediately issue a temporary restraining
order and/or writ of preliminary injunction directing respondents to cease
and desist from acting pursuant to the assailed Orders dated July 8, 2020
and October 5, 2020 in so far as such Orders allow private respondents to
present evidence ex-parte and deny the admission of my Pre-Trial Brief (ad
cautelam) in Civil Case No. 14807.
26. I have executed this affidavit in support of my application for
the issuance of a temporary restraining order and/or writ of preliminary
injunction, to prove and establish the foregoing facts.
27. I have likewise executed this affidavit to attest to the truth of
the foregoing facts and for all other legal intents and purpose it may serve.
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