Legal Writing-Revised Complaint

7/28/2019 Legal Writing-Revised Complaint

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REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL REGION

REGIONAL TRIAL COURT

Makati City, Branch 40

AISA SARMIENTO

Plaintiff,

-versus- Civil Case No. ___For: SPECIFIC PERFORMANCE

FERNANDO MARTIN, Defendant.

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COMPLAINT

PlaintiffAisa Sarmiento.(Aisa Sarmiento), by counsel, respectfully states:

I. PARTIES

1.1 Aisa Sarmiento is of legal age, a Filipino, with address at 67 J.P. Laurel St.,

Quezon City. It may be served with pleadings, motions, notices, resolutions, orders and other

processes of this Honorable Court through undersigned counsel at the address indicated below.

1.2 Defendant Fernando Martin,is of legal age, a Filipino, with address at 385

Corinthians Street, Quezon City, where he may be served with pleadings, motions, notices,

resolutions, orders and other processes of this Honorable Court.

I. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

2.1 Plaintiff is the sole proprietor of Med Central Inc. (Med Central), located at Level

2 of Robinsons Galleria in Ortigas, Quezon City.


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2.2 Due to Med Centrals insolvency, plaintiffoffered to sell the clinic to defendant

Fernando Martin, the Director/President of Health Care Inc.

2.3 Plaintiff and defendant had several meetings where plaintiff supplied defendant

with Med Centrals income statements, statement of accounts, among others, which revealed

that Med Central had a net loss for 2 years.

2.4 Plaintiff furnished defendant a list of equipment and assets of the clinic. They also

came up with the offer sheet where the list of equipment in the clinic and the clinic itself was

offered for sale.

2.5 On 13 February 2009, plaintiff and defendant executed a memorandum of

agreement (MOA), where plaintiff would sell the clinic and its equipment to defendant for Php

15,000,000.00.

2.6 As per the Contract to Sell, payments would be made in four (4) installments, in

the following manner:

FIVE HUNDRED THOUSAND PESOS (Php 500,000.00) to be paid on the date of

signing of the MOA;

TWO MILLION FIVE HUNDRED THOUSAND PESOS (Php 2,500,000.00) to be paid

on 30 May 2009;

SIX MILLION PESOS (Php 6,000.000.00)to be paid on 30 August 2009;

SIX MILLION PESOS (Php 6,000,000.00) to be paid on 30 November 2009.

The transfer of ownership and the deed of absolute sale would be made upon the last

payment.

2.7 Defendant paid Php 500,000.00 on 13 February 2009, date of signing of the

MOA, the receipt of which was acknowledged. The next day, 14 February 2009, defendant made

an additional payment, totaling the payments made to Php 3, 000,000.00.

2.8 Defendant however had not made any subsequent payments. He also entered into

an agreement with suppliers and the purchases were paid by plaintiff.

2.9 On 12 October 2009, the Contract of Lease between plaintiff and Robinsons

Galleria has expired. Under said contract, upon expiry, Robinsons will confiscate the equipment

and demolish the clinic if lessee failed to vacate the premises;


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2.10 By reason thereof, plaintiff vacated the premises at her own expense, taking the

equipment in the clinic, including those owned by defendant.

2.11 Notwithstanding demands made upon defendant, the latter failed and refused to

comply with his lawful obligation.

2.12 On 15 October 2010, plaintiff sent a letter to defendant, asking the latter to claim

his items, and for mutual restitution.

2.13 In recourse, defendant filed a complaint against plaintiff for robbery in relation to

the taking of his items in Med Central, and a civil case of confirmation of unilateral rescission

and damages before the Office of the City Prosecutor of Quezon City.

2.14 Defendant has failed and refused, and continues to fail and refuse, to perform the

conditions of the contract on his part.

2.14 As a result of defendants breach of obligation to fulfill his obligation, plaintiff

was constrained to secure the services of counsel to protect her interest and to file the complaint

and to incur attorneys fees and expenses of litigation, in the amount of Php 200,000.00, which

should be assessed against defendant.

III. FIRST CAUSE OF ACTION

3.1 Aisa Sarmiento respectfully repleads the allegations of the foregoing paragraphs

by reference.

3.2 Paragraph 1, Article 1169 of the Civil Code states:

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.

3.3 Article 1191 of the Civil Code provides:

The power to rescind obligations is implied in reciprocal ones, in case

one of the obligors should not comply with what is incumbent upon him.


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The injured party may choose between the fulfillment and the rescission of

the obligation, with the payment of damages in either case. He may also seek

rescission, even after he has chosen fulfillment, if the latter should become

impossible.

The court shall decree the rescission claimed, unless there be just cause

authorizing the fixing of a period.

This is understood to be without prejudice to the rights of third persons

who have acquired the thing, in accordance with Articles 1385 and 1388 and the

Mortgage Law. (1124)

3.4 Section 3 of the Contract to Sell states:

(3) FAILURE TO COMPLY WITH OBLIGATION.Should one of the

parties fail to comply with their respective obligations, the party who failed to

comply will be liable to pay thirty percent (30%) liquidated damages plus other

damages.

3.5 Aisa Sarmiento, in exercise of its obligation under the Contract to Sell,

turned over the clinic to Fernando Martin after he paid the second installment, totaling his

payment to Php3,000,000.00.

3.6 On the other hand, Fernando Martin stopped payment after the second installment

and after turnover of the clinic.

3.7 Therefore, pursuant to Paragraph 1, Article 1169 of the Civil Code, the effects of

delay in the delivery of an obligation or morasolvendi is the breach or violation of the obligation.

There has been no breach on the agreement on the part of AisaSarmiento, the breach herein was

committed by Fernando Martin. Hence, the latter is the guilty party.

3.8 In connection with the foregoing, it is of no doubt that Aisa Sarmiento is the

injured party of the herein case who can apply the provisions of Article 1191 of the Civil Code

and Section 3 of the Contract to Sell, which was stated earlier. Aisa Sarmientois entitled to

demand specific performance against Fernando Martin to pay the remaining balance of the

purchase price plus damages forthe latters failure to comply obligation.


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IV. SECOND CAUSE OF ACTION


by reference.

4.2 Article 1226 of the Civil Code provides:

Art. 1226. In obligations with a penal clause, the penalty shall substitute

the indemnity for damages and the payment of interests in case of non-

compliance, if there is no stipulation to the contrary. Nevertheless, damages shall

be paid if the obligor refuses to pay the penalty or is guilty of fraud in the

fulfillment of the obligation.

The penalty may be enforced only when it is demandable in accordance

with the provisions of this Code. (1152a)

4.3 Thus, Aisa Sarmiento has the right to thirty percent (30%) liquidated damages,

pursuant to Section 3 of the Contract to Sell which was cited earlier, and to Article 1226 of the

Civil Code.

V. THIRD CAUSE OF ACTION


by reference.

5.2 Section 13 of the Contract to Sell further provides:

(13) ATTORNEYS FEES, ETC: Should either party resort to judicial

proceedings to enforce any of its rights hereunder, the party at fault will pay the

other reasonable compensation for its expenses and charges, including attorneys

fees in addition to all expenses of litigation and costs of suit.

5.3 Fernando Martin is obligated to pay Aisa Sarmiento for any expenses, charges,

attorneys fees, litigation expenses and costs of the suit, should Aisa Sarmiento resort to judicial

proceedings to enforce any of its rights under the Contract to Sell.


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5.4 Based on the Contract to Sell, Fernando Martin should be made to pay Aisa

Sarmiento the amount of P200,000.00 by way of attorneys fees, costs and litigation expenses.

PRAYER

WHEREFORE, Aisa Sarmiento respectfully prays that this Honorable Court:

1. On the First Cause of Action, order Fernando Martin to pay the amount of Php

12,000,000.00 in performance of his obligation to the Contract to Sell.

2. On the Second Cause of Action, order Fernando Martin to pay the penalty cost of 30%

liquidated damages amounting to Php 3,600,000.00.

3. On the Third Cause of Action, order Fernando Martin to pay the sum of Php

200,000.00 as and for attorrneys fees and expenses of litigation, plus costs.

Aisa Sarmiento further prays for such other reliefs as may be just and equitable in the

premises.

Makati City, 16February 2012

Counsel for Plaintiff Aisa Sarmiento

By:

Verification and Secretarys Certificate Follows

Legal Writing-Revised Complaint

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