sample legal forms

8/13/2019 Sample Legal Forms

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Legal Forms - Sample Form of Petition for Certiorari

CAPTION/TITLE

PETITION

PETITIONERS, by counsel, respectfully state that:

1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and of thepublic and private respondents);

2. That (state the facts and circumstances under which the respondent tribunal, board or officer,exercising judicial functions) has acted without, or in excess of its jurisdiction, or with grave abuse ofdiscretion in the exercise of his judicial functions (including your arguments);

3. That (state that there is no appeal from such decision or any plain, speedy and adequate remedyin the ordinary course of law);

4. That a certified true copy of the decision (or order) herein sought to be annulled is hereto attachedas Annex A, together with copies of all pleadings and documents relevant and pertinent thereto.

5. That (state the material dates showing when notice of judgment or final order or resolution subjectthereof was received, when a motion for new consideration, if any, was filed and when notice of thedenial thereof was received).

WHEREFORE, it is respectfully prayed, that a writ of certiorari be issued annulling the judgmentor order herein complained of (with prayer for a preliminary injunction as the case may be, forthe protection of the rights of petitioner pending such proceedings), and after due hearing,that judgment be rendered annulling or modifying the decision or order subject of this petition andthe proceedings of (the defendant tribunal, board or officer), with costs against private respondent.

________ City, Philippines, this _____ day of _______2011

Name _______________________________Appointment No. _____________________Roll of Attorney No. ___________________

PTR No.____, ____ (date and place of issue)IBP No. ____, ____ (date of issue) (chapter)

Office Address________________________Email Address ________________________Contact No. __________________________MCLE Compliance (or Exemption) No._____

VERIFICATION AND CERTIFICATION AGAINST FORUM-SHOPPING

Legal Forms - Sample Form of Petition for Quo Warranto

CAPTION/TITLE

PETITION
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2. That (state fully and clearly the facts and circumstances showing that the defendant is in unlawfulpossession of a public office and that the plaintiff is entitled to hold the same)

3. That (state that the plaintiff has demanded of defendant to vacate the office in question and todeliver the same to the plaintiff, but the defendant unlawfully refused);

WHEREFORE, it is respectfully prayed:

1. That a writ of quo warranto be issued ousting and altogether excluding the defendant from theoffice of _________;2. That the plaintiff be declared entitled to said office and that he be placed forthwith in possessionthereof;3. That the plaintiff recovers his costs.






Legal Forms - Sample Form of Petition for Prohibition

CAPTION/TITLE

PETITION


1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and of the

public and private respondents);

2. That (state the facts and circumstances under which the respondent-tribunal, board or officer,exercising judicial functions, has acted without, or in excess of its jurisdiction, or with grave abuse ofdiscretion in the proceedings complained of);

3. That (state that there is no appeal from such act or any plain, speedy and adequate remedy in theordinary course of law);
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4. That a certified true copy of the decision (or order) herein sought to be annulled is hereto attachedas Annex A, together with copies of all pleadings and documents relevant and pertinentthereto.


WHEREFORE, it is respectfully prayed, that pending the proceedings in the action, a preliminaryinjunction be granted ordering the respondent _________ to desist and refrain from furtherproceedings in the premises, and that after due notice and hearing, a Writ of Prohibition be issuedcommanding the said respondent to desist absolutely and perpetually from further proceedings (inthe action or matter in question), with costs.

________ City, Philippines, this _____ day of _______2010.





m of Petition for Mandamus

CAPTION/TITLE

PETITION



2. That (state the facts and circumstances under which the respondent-tribunal, board or officer)unlawfully neglected the performance of an act which the law specifically enjoins as a duty resultingfrom an office, trust or station, or unlawfully excluded the petitioner from the enjoyment of a right oroffice to which the petitioner is entitled;

3. That the petitioner has no other plain, speedy and adequate remedies in the ordinary course oflaw other than this action;

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5. That the petitioner by reason of the wrongful act of the respondent has sustained damages in thesum of __________ pesos (Php___________);

WHEREFORE, it is respectfully prayed, that after due notice and hearing, a Writ of mandamus beissued, commanding the respondent forthwith to: (here state the act required to be done, withdamages and costs.)






Legal Forms - Sample Form of Notice of Appeal

The defendant, (or plaintiff as the case may be) by counsel, hereby gives notice that he is appealingfrom the judgment of this Honorable Court in the above-entitled case, dated ___________, a copy ofwhich was received by him on ________________, to the Court of Appeals.


Name ______________________________Appointment No. _____________________Roll of Attorney No. ___________________


Office Address________________________Email Address ________________________

Contact No. _________________________MCLE Compliance (or Exemption) No._____

Copy furnished:_________________________________

Name and Address of adverse counsel

PROOF OF SERVICE (affidavit of service by mail)

Legal Forms - Sample Form of Motion to Lift Order of Default

1. That ten (10) days after the summons of the complaint was received by this defendant, shefiled a motion to dismiss;
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2. That plaintiff had not filed any opposition to said motion and no hearing was held on said

motion to dismiss;

3. That while the said motion to dismiss was still pending, this Honorable Court declareddefendant in default; and

That said order declaring defendant in default is premature and without legal basis since there isstill a pending motion to dismiss.

Legal Forms - Sample Form of Motion to Dismiss 2Republic of the Philippines

National Capital Judicial RegionMETROPOLITAN TRIAL COURT

Branch 39, Quezon City

LAKI ASSET COMPANY,Plaintiff,

Civil Case No. 3333

- versus - For: Sum of Money

DAMI UTANG CORPORATION,Defendant.

x --------------------------------------- x

MOTION TO DISMISS

DEFENDANT, by counsel, respectfully moves to dismiss the Complaint on the ground that theComplaint fails to state a cause of action asTHE OBLIGATION SOUGHT TO BE ENFORCED BY PLAINTIFFIS NOT YET DUE AND DEMANDABLE, as shown by the following:

1. Allegedly, plaintiff has failed to reach the quotas agreed upon under the MarketingAgreement dated 1 January 2006; defendant now seeks to collect the sum of TWO HUNDREDTHOUSAND PESOS (P200,000.00), representing the balance of the proceeds due plaintiff under the saidMarketing Agreement.

2. The contract is for one (1) year and defendant is given that same period to reach the quotaspecified therein; the period of one (1) year has not expired. Consequently, plaintiffs claim is premature

as there is yet no breach of the Marketing Agreement until the period expires and the quota is notattained. For this reason, plaintiffs Complaint states no cause of action and must be dismissed.

WHEREFORE, defendant respectfully prays that the Complaint be DISMISSED for failure to statea cause of action.

Other just and equitable reliefs are also prayed for.

Quezon City; 13 April 2007.

(Sgd.) MITCH MCDEERECounsel for Defendant

[Address]

REQUEST FOR & NOTICE OF HEARING
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THE BRANCH CLERK OF COURTMetropolitan Trial CourtBranch 39, Quezon City

Please submit the foregoing Motion to the Court for its consideration and approval immediately

upon receipt hereof and kindly include the same in the courts calendar for hearing on Friday, 27 April2007 at 8:30 in the morning.

ATTICUS FINCH1 MockingBird StreetTimog Avenue, Quezon City

Please take notice that counsel has requested to be heard on Friday, 27 April 2007 at 8:30 in themorning.

(Sgd.) MITCH MCDEERECounsel for Defendant

2 The Firm

Laguna Street, Quezon City

PLUS:Proof of ServiceNo comments:Email ThisBlogThis!Share to TwitterShare to FacebookLabels:Motion to DismissT u e s d a y , J u l y 9 , 2 0 1 3

Legal Forms - Sample Form of Motion to Dismiss

Defendant, by counsel, respectfully moves that the complaint be dismissed on the followinggrounds:

(Here mention one or more grounds provided for in Rule 16, Rules of Court: Lack of Jurisdiction,Payment; Novation; Prescription; lack of Capacity)

ARGUMENTS

(Here set forth the reasons in support of the grounds mentioned)

PRAYER

WHEREFORE, it is respectfully prayed that the complaint be dismissed.

Legal Forms - Sample Form of Motion to Declare Defendant in Default

1. Plaintiff filed this Complaint against defendant on _________; summons were served ondefendant on _________ as indicated by the Sheriffs return of even date, a copy of which isattached as Annex A;

2. Defendants reglementary period to file Answer ended on ________; no motion for extension ofsuch period was filed nor was any granted motu propio by this Honorable Court. Despite the lapse of
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time, defendant has failed to answer the Complaint against her; plaintiff is entitled to a declaration ofdefault and the right to present evidence ex parte against defendant.

WHEREFORE, plaintiff respectfully prays that defendant be declared in default and that plaintiff beallowed to present evidence ex parte before the Clerk of Court acting as Commissioner.

COMMENT ON THE PROSECUTIONS

FORMAL OFFER OF EVIDENCE

THE ACCUSED, by counsel, respectfully opposes the Prosecutions Offer of Evidence for the

following reasons:

Exhibit A, the sworn statement of A, the private complainant, and Exhibit A-1, his signature

are INADMISSIBLE because the private complainant was never presented to authenticate the

document or subjected to cross-examination, thus, the document is hearsay and inadmissible.

Exhibit B, the post-dated check dated ________, issued by the accused in the amount of

__________________; Exhibit B-1, the dorsal side of the check with notation DAIF, Exhibit B-2,

the signature of accused on face of the check are INADMISSIBLE for violation of the Best Evidence

Rule as the original check was never presented; and no basis for the presentation of secondary

evidence laid.

ACCORDINGLY, the ACCUSED respectfully submits that the prosecutions Exhibits are

INADMISSIBLE and must, thus, be EXCLUDED.


Name _______________________________

Appointment No. _____________________

Roll of Attorney No. ___________________

PTR No.____, ____ (date and place of issue)

IBP No. ____, ____ (date of issue) (chapter)

Office Address________________________

Email Address ________________________

Contact No. __________________________

MCLE Compliance (or Exemption) No._____

Copy furnished:________________Public Prosecutor

_________________Private Prosecutor

Legal Forms - Sample Form of Complaint for Interpleader

CAPTION AND TITLE
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COMPLAINT

1. Averment of names, personal circumstances and residences of the parties;

2. That on December 18, 2000, XYZ took a life insurance policy for P2 million from the plaintiff andthat the primary beneficiary designated was simply wife;

3. That said XYZ died intestate on June 30, 2008;

4. That both defendants, claiming to be the wife of XYZ, filed their respective claims with theplaintiff;

5. That the plaintiff is ready, willing and able to pay the proceeds of such insurance policy, however,it has no means of knowing definitely to whom as to the two defendants payment should be made;

6. That defendants should interplead and litigate their conflicting claims to the insurance proceeds.

PRAYER

WHEREFORE it is respectfully prayed that judgment issue:1. Ordering defendants to interplead and litigate their conflicting claims between them;2. Ordering the deposit with this Honorable Court the insurance proceeds and that the plaintiff bedischarged from whatever claims that may be had against it relative to the life insurance policy ofXYZ.

Other just and equitable reliefs are also prayed.

PLACE AND DATE

COUNSELS NAME,ADDRESS, etc.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

Legal Forms - Sample Form of Complaint for Replevin

COMPLAINT

Plaintiff, by counsel, respectfully alleges:

1. That both the plaintiff and the defendant are of age and residents of ______________;

2. That said plaintiff is the lawful owner of a personal property, namely, _____________, valued at

_____________ and more particularly described as follows:

(description of property)

3. That on or about the ____ day of _____, herein defendant borrowed said property from Plaintiffpromising to return the same the next day;
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4. That on _____, and for ten (10) days thereafter, the herein Plaintiff demanded for the return of thesaid property but despite repeated demands, said Defendant refused and still refuses the saidproperty claiming that the same belongs to him;

5. That plaintiff, in accordance with the Rules of Court, hereby applies for an order for the delivery ofsaid ________________- and hereby files the necessary affidavit and bond hereto attached, as

Annex A and Annex B, respectively, and made integral parts of this application andcomplaint;

6. That the herein plaintiff is ready and willing to file a bond, executed to the defendant in double thevalue of the property stated above, for the return of the property to the Defendant if the return thereofbe adjudged and for the payment to the Defendant of such sum as he may recover from the Plaintiffin the action.


1. That the property in question be ordered delivered to the plaintiff or if material delivery be notpossible, that defendant be ordered to pay the plaintiff its actual value, namely the sumof _________.

2. That the defendant be made to pay the costs of this suit, and plaintiff be granted such otherequitable relief consistent with law and equity.


Name ____________________________Office Address ____________________Roll of Attorney No. ________________

PTR No.___, ___ (date and place of issue)IBP No. ____, ___ (date of issue) (chapter)

VERIFICATION with CERTIFICATION OF NON-FORUM SHOPPING

Legal Forms - Sample Form of Complaint for Replevin

COMPLAINT

Plaintiff, by counsel, respectfully alleges:

1. That both the plaintiff and the defendant are of age and residents of ______________;

2. That said plaintiff is the lawful owner of a personal property, namely, _____________, valued at_____________ and more particularly described as follows:

(description of property)

3. That on or about the ____ day of _____, herein defendant borrowed said property from Plaintiffpromising to return the same the next day;

4. That on _____, and for ten (10) days thereafter, the herein Plaintiff demanded for the return of thesaid property but despite repeated demands, said Defendant refused and still refuses the saidproperty claiming that the same belongs to him;
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5. That plaintiff, in accordance with the Rules of Court, hereby applies for an order for the delivery ofsaid ________________- and hereby files the necessary affidavit and bond hereto attached, asAnnex A and Annex B, respectively, and made integral parts of this application andcomplaint;

6. That the herein plaintiff is ready and willing to file a bond, executed to the defendant in double the

value of the property stated above, for the return of the property to the Defendant if the return thereofbe adjudged and for the payment to the Defendant of such sum as he may recover from the Plaintiffin the action.


1. That the property in question be ordered delivered to the plaintiff or if material delivery be notpossible, that defendant be ordered to pay the plaintiff its actual value, namely the sumof _________.

2. That the defendant be made to pay the costs of this suit, and plaintiff be granted such otherequitable relief consistent with law and equity.



PTR No.___, ___ (date and place of issue)IBP No. ____, ___ (date of issue) (chapter)

VERIFICATION with CERTIFICATION OF NON-FORUM SHOPPING

Legal Forms - Sample Form of Demurrer to Evidence

Accused, __________________, through counsel, and pursuant to leave granted by thisHonorable Court, in its order dated _____________ respectfully submits this motion to dismiss byway of demurrer to evidence and alleges that:

THE INDICTMENTTHE EVIDENCE FOR THE PROSECUTION

ARGUMENTS(why the case should be dismissed; insufficiency of evidence should be among those

enumerated showing why the same is insufficient)

WHEREFORE, it is respectfully prayed that the case against the accused be dismissed.

Legal Forms - Sample Form of Legal Opinion

September 14, 2009

Mr. Rogelio G. ChanMilan Furniture Co., Inc.
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245 Juan Luna StreetBinondo, Manila

Dear Mr. Chan:

Here is the opinion that you requested.

The facts, as I gather from you and your documents, are as follows:

On May 12, 2008 you applied with the Century Bank in Binondo, Manila, on behalf of Milan FurnitureCo., Inc., for a letter of credit, Annex A, covering its importation of hardwood from Vietnam. Onarrival of the goods, the bank agreed to advance the payment of their price to your supplier. In turn,you executed a promissory note in the name of Milan Furniture, Annex B, undertaking to pay backthe banks advance within three months of the date of the note. You also signed a trust receipt,

Annex C, covering receipt of thegoods.

The trust receipt provided that, in case of the sale of the imported hardwood, Milan Furniture wouldturn over the proceeds of that sale to the bank to apply to your loan. Because Milan Furniture hadbeen unable to pay its promissory note to the bank when it fell due, on October 17,2008 the lawyers

of the bank sent you a demand letter, Annex D, requesting full payment of the debt of return of thegoods.

I understand that, on receipt of the letter, you tried to negotiate with the manager of the bank,offering to return the imported hardwood that you were yet unable to sell or use. But the bankmanager rejected your offer, stating that the bank did not accept goods in payment of debts owed it.Since further negotiations also failed, the bank sent you a final demand for payment on December 4under a threat of filing a criminal complaint for estafa involving the trust receipt that you executed inits favor.

The question you pose is whether or not, under the above facts, you may be held liable for estafaunder PD 115, the Trust Receipt Law, in relation to Section 1(b) of Article 315 of the Revised PenalCode.

In my opinion, since the bank opted not to accept the goods even when you offered to return themon behalf of Milan Furniture, it should be deemed to have withdrawn its earlier demand from you topay or return the goodscovered by said Trust Receipt. Effectively, the bank chose to considerMilan Furniture to have already bought those goods, altogether removing the transaction from thecoverage of Section 13 of the Trust Receipt Law.

I base my opinion on the following:

The relevant provision of the Trust Receipt Law or PD 115 provides:SEC.13. Penalty Clause.The failure of an entrustee to turn over the proceeds of the sale of goods,documents or instruments covered by a trust receipt to the extent of the amount owing to the

entruster or as appears in the trust receipt or to return said goods, documents or instruments if theywere not sold or disposed of in accordance with the terms of the trust receipt shall constitute thecrime of estafa, punishable under the provisions of Article Three Hundred and Fifteen, ParagraphOne (b), of Act Numbered Three Thousand Eight Hundred and Fifteen, as amended, otherwiseknown as the Revised Penal Code.xxx

The related provisions of Section 1(b), Article 315 of the Revised Penal Code, under which thevi9olation is made to fall, states:


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ART. 315. Swindling (estafa).Any person who shall defraud another by any of the meansmentioned herein below xxx:

1. With unfaithfulness or abuse of confidence, namely:xxx xxx xxxb. By misappropriating or converting, to the prejudice of another, money, goods or any other

personal property received by the offender in trust or on commission, or for administration, or underany other obligation involving the duty to make delivery of or to return the same, even though suchobligation be totally or partially guaranteed by a bond; or by denying having received such money,goods, or other property.

From the above, the following are the elements of estafa involving a trust receipt:1. The entrustee received the goods under a trust receipt from the entruster under an obligation toturn over the proceeds of the sale of goods or to return said goods;2. The entrustee misappropriated or converted the goods by failing toturn over the proceeds of their sale or to return said goods to the entruster;3. The misappropriation or conversion is to the prejudice of the entruster; and4. The entruster made a demand on the entrustee.

One of the elements of estafa involving a trust receipt is that the entrustee [in this case, you or MilanFurniture] received the goods under a trust receipt from the entruster [in this case, Century Bank]under an obligation to turn over the proceeds of the sale of the goods or to return said goods. TheTrust Receipt Law, PD 115, provides in Section 11 that the liability for estafa under paragraph 1(b) of

Article 315 of the Penal Code arises in case of the failure of an entrustee to turn over the proceedsof the sale of the goods or to return said goods.

The trust receipt in this case, Annex A, echoes the above provisions of the Trust Receipt Law.Under it, Milan Furniture or you as its signatory, undertook to turn over to the BANK the proceedsof the sale of the goods1 or, in case on non -sale, to return the goods covered by this Trust Receiptto the BANK upon its demand.

But the terms of the trust receipt does not end there. The trust receipt, Annex A, gives CenturyBank an option not to accept the return of the goods. In effect, Century Bank could chose to regardsuch goods already sold to Milan Furniture even though the latter could and wanted to return them.The seventh paragraph f the Trust Receipt, Annex A, thus reads:

We agree that the BANK is not obliged to accept any return of the goods under this Trust Receipt byus or to consider any return thereof if accepted or demanded by the BANK, as satisfaction of ourindebtedness to the BANK.

Century Bank in fact availed itself of the above option. It opted not to accept the goods even whenyou offered to return them. Consequently, Century Bank should be deemed to have withdrawn itsearlier demand that you or Milan Furniture pay or return the goods covered by said Trust Receiptimmediately. Effectively, Century Bank chose by its action to

consider the subject goods sold to Milan Furniture, altogether removing the transaction from thecoverage of Section 13 of the Trust Receipt Law.

The essence of the crime of conversion or misappropriation is that the offender to whom money orgoods has been entrusted has unfaithfully or with abuse of confidence failed to return what wasmerely entrusted to him and appropriated it for his own. Here, neither Milan Furniture nor you couldbe considered as having unfaithfully or with abuse of confidence misappropriated and converted thegoods subject of the trust receipt.


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Century Bank did not want those goods back. It had regarded them sold outright to Milan Furniture.The latters liability for the goods should, therefore, be considered purely civil.

Moreover, Section 13 of the Trust Receipt Law provides that the failure of an entrustee to turn overthe proceeds of the sale of the goods or to return said goods if they were not sold ordisposed ofin accordance with the terms of the trust receipt shall constitute the crime of estafa. The essence of

the penal provision of the law, therefore, is that the entrusted [here, Century Bank] has entrusted thegood to the entrustee [Milan Furniture or you] for him to sell. Once sold, the entrustee was to turnover the proceeds of the sale to the entruster.

Section 13 does not embrace instances where the goods are turned over by the entrustor to theentrustee for the latters use in his own business. This is clear from the ruling of the Supreme Courtin Colinares v. Court of Appeals that reads:

Also, noteworthy is the fact that Petitioners are not importers acquiring the goods for re-sale,contrary to the express provision embodied in the trust receipt. They are contractors who obtainedthe fungible goods for their construction project. At no time did title over the construction materialspass to the bank, but directly to the Petitioners from CM Builders Centre. This impresses upon thetrust receipt in question vagueness and ambiguity, which should not be the basis for criminal

prosecution in the event of violation of its provisions.

In this case, on May 12, 2008 Century Bank agreed with Milan Furniture to open a letter of credit(LC) on the latters behalf to cover a shipment of hardwood from Vietnam for use in its manufactureof furniture.

Notwithstanding that Milan Furniture imported the hardwood in question so it could use them inmanufacturing furniture, Century Bank made you, a representative of your company, sign a trustreceipt that made it appear as if Century Bank had turned over the hardwood to Milan Furniturefor it to sell to others and to turn over to the bank the proceeds of the sale. The Supreme Court haslong condemned such practice. Thus, it said in the Colinares case:

The practice of banks of making borrowers sign trust receipts to facilitate collection of loans andplace them under the threats of criminal prosecution should they be unable to pay it may the unjustand inequitable, if not reprehensible. Such agreements are contracts of adhesion which borrowershave no option to sign lest their loan be disapproved. The resort to this scheme leaves poor andhapless borrowers at the mercy of banks, and is prone to misinterpretation, as had happened in thiscase. Eventually, PBC showed its true colors and admitted that it was only after collection of themoney as manifested by its Affidavit of Desistance.

That the transaction was a loan is made clear from paragraph 1 of the agreement for the opening ofa letter of credit between Century Bank and MHTI, Annex A. It provides that, in consideration of theopening of the letter of credit on behalf of Milan Furniture in the amount of US$39,060, the latterundertook to pay the bank on demand for all drafts drawn against such letter of credit, with 13% perannum. The title to the goods never really passed to the bank. Century bank did not import them

from Vietnam; it merely opened a letter of credit for the benefit of Milan Furniture. The suppliershipped the hardwood to Milan Furniture under the cover of that letter of credit. In short, CenturyBank merely provided the loan that financed the shipment.

Since the transaction was a loan, Milan Furnitures liability to Century Bank should only be regardedas civil. The criminal action against you must fail. It is but fair and the investigating prosecutor or thecourt should see the point.


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A word of reservation: I base my opinion on the language of the laws involved as well as on settledjudicial precedents. But, in the event the bank files criminal complaint against you, there is thechance, however small, that the public prosecutor may just decide to file it in court, subjecting you tothe hassle, expense, and risk that criminal trials entail. But I am confident that, ultimately, you will beabsolved. Please let me know if I can be of further service to you in this matter.

Very truly yours,ANNA ELIZABETH A. DE DIOS

Legal Forms - Sample Form of Motion for Judgment on the Pleadings

[1]Republic of the PhilippinesREGIONAL TRIAL COURT

National Capital Judicial RegionBranch ___

Manila

[2]A,

Plaintiff,- versus- Civil Case No. ___

B,Defendant,

X- - - - - - - - - - - - - - - -x

Plaintiff, by counsel, respectfully states that:

[3] 1. In the answer of the defendant filed on _________--- he admitted having signedthe promissory note and merely interposed the defense that he was asking for time within which topay the obligation;

2. Said answer does not tender any issue and in fact it can be read therefrom that defendantadmitted his obligation.

[4] WHEREFORE, it is respectfully prayed that this Honorable Court render judgment on thepleadings.

[5]________ City, Philippines, this _____ day of _______2011 .


PTR No.___, ___ (date and place of issue)IBP No. ____, ___ (date of issue) (chapter)MCLE Compliance No.

[6]NOTICE OF HEARING[7]PROOF OF SERVICE (affidavit of service by mail)

EXPLANATION

~end~
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Plaintiff Jonna Bueno (hereinafter Jonna) filed the present action for damages against DefendantGloria Supermart, Inc. (hereinafter Gloria Supermart). Jonna attributes the injuries suffered by herminor son to Gloria Supermarts gross negligence in failing to make its premises safe for customers,thereby making it liable under Art. 2176 and Art. 2180 of the Civil Code. Defendant maintain thatwhatever injuries and expenses that were incurred by the Bueno family can be attributed to Jonnas

failure to supervise her child.

STATEMENT OF THE FACTS

1. On May 11, 2010, Jonna and her minor child, 5-year old Ricky, went to Gloria Supermart ataround 10 a.m. in order to shop for groceries.

2. While negotiating the aisles in the supermarket, Rickys attention was captured by a small red ballthat was rolling on the floor. Being but a child of tender years, possessed of the immature dispositionof individuals of that age, it was no surprise that Ricky chased after the ball down the aisle and awayfrom Jonna.

3. It was at this point that Ricky suddenly slipped and fell because he had stepped on a wet sectionof the aisle. Liquid syrup had seeped out from a bottle located on a nearby shelf and had formed apuddle on the floor.

4. Jonna immediately rushed to her sons side. Ricky was crying in pain and pointing to his rightwrist.

5. Jonna called for help as there were no nearby store clerks. Rene Cstro (hereinafter Rene), thesupermarket supervisor eventually came over from another aisle in order to help out.

6. There were no signs and devices that would warn shoppers that an area of the floor was wet.There were no nearby cleaners or janitors wiping up the liquid. In fact, the only nearby GloriaSupermart personnel was Rene in the next aisle and even he seemed unaware that a hazardexisted on the other side of the shelves.

7. With the aid of Rene, Jonna managed to bring her child to the Philippine Orthopedic Hospitalwhere Ricky was attended to by Dr. John Lim. Ricky was subjected to an x-ray and it wasdiscovered that surgery was necessary in order to restore the position of a fractured bone in his rightwrist.

8. Said surgery in fact took place and Ricky was thereafter required to stay overnight at the hospitalfor purposes of pain management and care. He was discharged the following day.

9. Ricky recovered the full use of his hand only after a period of 6 weeks. In that span of time, hemoved with discomfort and difficulty, unable to use his hands.

10. Since the date of Rickys injury and even during his recuperation period, Jonna suffered themental anguish, fright and serious anxiety of a mother who was confronted with the injury of abeloved child.

11. In addition to the physical suffering suffered by Ricky and the mental andemotional strain onJonna, they were further aggrieved because they had to spend P22,840.00 in doctors fees,hospitalization expenses, and medicine, as evidenced by receipts, marked as ANNEX ____.


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12. On the other hand, Gloria Supermart, through Rene, claims that it exercised proper diligence inmaking the premises safe and that ultimately Jonna was the one who failed to supervise Ricky. Itdenied liability for all damages.

ISSUES

Given the foregoing facts and circumstances, the following issues are presented for discussion:1. Whether or not Gloria Supermart may be held liable for the commission of aquasi delict under Art. 2176 and Art, 2180 of the Civil Code.

2. Whether or not Gloria Supermart may be held liable for damages.

ARGUMENTS

I. Gloria Supermart is liable for the commission of a quasi delict that was the proximate cause ofRickys injuries.

A. The proximate cause of the injuries that Ricky suffered was the negligence ofGloria Supermarts

employees.

1. Art. 2176 provides that whoever by act or omission causes damage to another,there being faultor negligence, is obliged to pay for damage done. In the case of Child Learning Center, Inc. v.Tagorio (G.R. No. 150920, Nov. 25, 2005), the Supreme Court stated that in order to establish aquasi-delict case under this provision, the plaintiff must prove by a preponderance of evidence: (1)the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some otherperson for whose acts he must respond; and (3) the connection of cause and effect between thefault or negligence and damages incurred. (supra)

2. All three conditions obtain in the present case.

3. It is undisputed that Ricky broke his wrist when he slipped and fell on a puddle of liquid syrup that

was on the floor of Gloria Supermarts premises. It was the presence of this syrup that was theproximate cause of Rickys injury. Proximate cause is definedas thatcause which, in natural andcontinuous sequence, unbroken by any efficient intervening cause, produces the injury, and withoutwhich the result would not have occurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905,

Aug. 28, 2009). It is submitted that Ricky would not have fallen and broke his wrist if he had notslipped on the syrup.

4. The question now is, is his act of slipping on the syrup an accident or is thesyrups presence onthe floor an act of negligence that may be attributed to Gloria Supermarts employees? If theproximate cause was an accident, clearly no liability can attach to Gloria Supremart. On the otherhand, if the proximate cause is the lattersnegligence, it may properly held liable under theprovisions of the Civil Code.

5. An accident pertains to an unforeseen event in which no fault or negligenceattaches to thedefendant. On the other hand, negligence is the omission to do something which a reasonable man,guided by those considerations which ordinarily regulate the conduct of human affairs, would do, orthe doing of something which a prudent and reasonable man would do. (Jarco Marketing Corp. v.Court of Appeals, G.R. No. 129792, Dec. 21, 1999)

6. Applying the law to the present case, it is clear that Rickys injurywas not caused by accident. Asearlier mentioned, Ricky broke his wrist because he slipped and fell due to liquid syrup that wasseeping from a bottle located on the supermarket shelves. Clearly, the liquid should not have been


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on the floor as common sense would indicate that it posed a threat to even the most careful ofindividuals walking past. Anybody could have slipped and fallen on the syrup.

7. The mere presence of the syrup on the floor already negates Gloria Supermarts claim that itexercised proper diligence in making its premises safe. Based on its past experience as admitted byRene, similar accidents have previously occurred. Thus, it could have easily foreseen that such an

accident could happen again. Failure to take the proper precautions in guarding against such amishap is an act of negligence on the part of Gloria Supermarts employees.

8. Specifically, Rene, as store supervisor, could have been more vigilant inpatrolling the aisles forspills or the presence of similar hazards. He failed the test for determining whether a person isnegligent that was laid out by the Supreme Court in the case of Philippine National Construction v.CA (G.R. No. 159270, Aug. 22, 2005). The test in that case requires a person to act as a prudentman in a similar position and fails to take the proper precautions against foreseeable harm. He hasalready had 5 years of experience in handling the incidents of the supermarket and yet he didnothing.

9. Moreover, signs and warning devices which would inform shoppers that a hazard was presentwere noticeably absent. This oversight evidences even the want of ordinary care on the part of Rene

and the other supermarket employees.

10. Rene and the other employees negligence in patrolling the aisles and placing proper warningsigns/devices is further supported by the fact that, as earlier mentioned: 1) similar accidents oftenhappen, and 2) they knew that children often accompany their parents to the supermarket. Havingadvance notice of these facts, they cannot now claim that Rickys injury was an unforeseeableaccident.

B. Gloria Supermart may be held liable for the negligent acts or omissions of itsemployees under Art.2180 of the Civil Code.

11. Art. 2180 provides that the obligation imposed by Art. 2176 is demandable notonly for ones ownacts or omissions, but also for those of persons for whom one is responsible. Said article furtherprovides that the owners and managers of anestablishment or enterprise are likewise responsiblefor damages caused by their employees in the service of the branches in which the latter areemployed or on the occasion of their functions.

12. Applying the foregoing to the present case, it is clear that Rene and other employees on dutythat day were at that time in the service of Gloria Supermart, performing their regular functions andduties.

13. In order to escape liability for its employees negligent acts, Gloria Supermartmust show that itobserved the diligence of a a good father of the family to prevent the damage.

14. Unfortunately, Gloria Supermart has failed to show that it exercised such degree of diligence in

supervising Rene and the other employees. The testimonies on record do not show that it was storepolicy to take extra precautions against spills and other mishaps which occur in the ordinary courseof a supermarket business. The testimonies on record also indicate an absence of institutionalconcern for the safety and well being of children that they knew often accompanied their parents inthe store. In fact, Rene testified that children were the sole responsibility of their parents. While thismay be true to a certain extent, considering that Art. 209 of the Civil Code provides that authorityover minor children are with the parents, Gloria Supermart could have, by exercising ordinarycare, prevented or at least minimized the possibility of mishaps occurring. The preventionand removal of hazards like the syrup on the floor is a duty that falls squarely within its area of


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responsibility. Moreover, children cannot be held to the same exacting standards of diligence thatare attributed to an adult. Children of tender years like Ricky, are obviously at greater risk fromhazards. Despite Gloria Supermarts knowledge andawareness of childrens presence on itspremises, it did not exercise the diligence of a good father of the family in making sure that it tookextra care to supervise and instruct its employees in minimizing the risk.

15. All told, it is evident that all the conditions of a quasi delict obtain in the presentcase: Rickysuffered an injury which in the ordinary course of events would not have happened had it not beenfor the negligence of Gloria Supermarts employees in preventing the occurrence of spillages andother ordinary store incidents and subsequently, in not promptly cleaning up the spilled liquid syrupand in not placing signs and other warning devices. Gloria Supermart itself was liable for the acts ofits employees because it failed to exercise the diligence of a good father of the family in making surethat it was company policy to take precautions against foreseeable accidents, including those thatwould involve children. Assuming there was such a policy it was negligent in supervising itsemployees to ensure that they adhered to such standards and policies.

II. Gloria Supermart is liable for the payment of damages.

1. Art. 20 of the Civil Code provides that every person who, contrary to law, wilfully or negligently

causes damage to another, shall indemnify the latter for the same. Moreover, Art. 2176 also obligesthe party responsible for the quasi delict to pay for the damage done. Here, the negligence of GloriaSupermart has been clearly established. Hence, it cannot escape liability for the payment ofdamages.

A. Gloria Supermart is liable for the payment of actual damages.

2. Except as provided by law or by stipulation, one is entitled to an adequatecompensability for suchpecuniary loss suffered by him as he has duly proved. (Art.2199, Civil Code)

3. Jonna incurred P22,840 in doctors fees, hospitalization expenses and medicine, which areproperly documented by receipts (ANNEX A). These expenses would not have been incurred hadthe accident not happened as a result of Gloria Supermarts negligence in making sure that itspremises were safe and secure.

B. Gloria Supermart is liable for the payment of moral damages.

4. Moral damages include physical suffering, mental anguish, fright, seriousanxiety, besmirchedreputation, wounded feelings, moral shock, social humiliation, and similar injury. (Art. 2217, CivilCode) The article further provides that thoughincapable of pecuniary computation, moral damagesmay be recovered if they are the proximate result of the defendants wrongful act or omission.(supra)

5. The facts bear out the claim that Jonna suffered mental anguish, fright and serious anxiety whenshe saw her son injured and in pain. Her emotional and mental state is directly connected with the

fact that her son slipped, fell and broke his wrist due to the negligence of Gloria Supermart and itsemployees.

6. A mother is naturally concerned over the health and well being of her child. Hence, one can onlyimagine the suffering that she had to go through when she saw her child slip and fall, undergosurgery and continue to suffer pain and discomfort for 6 weeks after he was discharged from thehospital.


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7. Ricky himself had to endure a significant amount of physical suffering as a resultof his brokenwrist. Moral damages can also be recovered for such injuries suffered as a consequence of quasidelict because the law (Art. 2219, Civil Code) treats it as an analogous circumstance to thoseinstances in Art. 2217 for which moral damages may be properly claimed.

8. Note that in addition to the pain he suffered on the day of the injury, such painlasted even up to 6

weeks after the surgery, during which time, he had limited range of movement in his hands and wasalso forced to deal with a significant amount of discomfort.

C. Even assuming there was also negligence on the part of Jonna, such was only contributory andwill not negate the award of damages.

9. The proximate cause of Rickys injury and the Bueno familys subsequent suffering is still GloriaSupermarts negligence.

10. Hence, Gloria Supermart should still be primarily liable for the payment of damages.

11. Assuming Jonna should have taken greater care in looking after Ricky, this stilldoes not makeher negligence the proximate cause because an accident would still not necessarily have occurred

without the efficient intervening cause of the liquid on the floor.

12. Contributory negligence, if there is any, will only serve to reduce the damages that may berecovered by Jonna.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered in favor ofplaintiff and against defendant by:

1) FINDING Gloria Supermart liable for the commission of negligent acts under Art. 2176 & 2180when it failed to maintain safe premises for its customers; causing injury to Ricky.

2) ORDERING Gloria Supermart to pay both actual damages of P22,840, and moral damages in anamount this Honorable Court finds just and reasonable under the circumstances.

Other just and equitable remedies under the circumstances are likewise prayed for.

Quezon City, November 27, 2011.

(Sgd.) ATTY. REX BELTRAN Counsel for PlaintiffAddress:

IBP No:PTR No:

Roll No:MCLE No:

Copy furnished:

ATTY EMIL SUNGACounsel for Defendant

EXPLANATION


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In view of time and manpower restrictions, the above Memorandum was served viaregistered mailas personal service could not be availed of without causing undue hardship to plaintiff.

(Sgd.) ATTY. REX BELTRANCounsel for Palintiff

~end~

HOW TO WRITE A TRIAL MEMORANDUM:

Note: Pre-work is indispensable to a substantial and convincing trial memorandum. It will do well foryou, therefore, to go over the pleadings, the transcript of testimonies of the witnesses, and thedocumentary exhibits. Working on these materials, identify the legal dispute involved and based onit, draw up the principal issue in the case. From there, proceed to make an outline of the relevantfacts that the opposing parties claim and pin point the issues that you need to address. (Abad, 2009)

1. HEADING

2. SUMMARY OF THE NATURE OF THE ACTION Determine what actions were filed by the plaintiff against the defendant and otherproceedings which the parties have undergone prior to the filing of the present action. (Ibid.)

3. A SUMMARY OF THE FACTS OF THE CASE This refers to the transaction or event that brought about the legal dispute and the lawsuit asseen from the opposing points of view of the parties. (Ibid.)

Read the materials and make an outline of the relevant facts of the case, arranging them theorder of time and carefully narrating each if the parties version without veering towards any of theparties side. (Ibid.)

Determine the legal dispute by ascertaining what right of a party the other has violated.Afterwards, study the laws and rules involved in such dispute. (Abad, 2009)

4. STATEMENT OF RELEVANT ISSUES THAT THE PARTIES PRESENT FOR RESOLUTION List down all the issues involved and identify the controlling issue or issues that, whenresolved, will end the legal dispute.(Ibid.)

5. AN ORDERLY PRESENTATIONS OF THE ARGUMENTS THAT SUPPORT YOUR CLIENTSPOSITION Rough out your argument on a paper, using the balance sheet format (Ibid.). You need to beguided by your proposition or where you stand on the issue. Draft out arguments against you as wellas those arguments in your favor.

Lastly, write your closing statement appealing to the good senses of the reader.

Write up your memorandum introducing the issue/issues, arguments and closing statement.Edit your work to rid out of needless words.

Below is the structure of a memorandum, opinion, brief, petition, comment, position paper,

decision, or similar legal writing: (Ibid.) Statement of the Case

Statement of the Facts

Plaintiffs version of the facts

Defendants version of the facts

The issue or issues

Body of Arguments


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Relief

(Source: UST Golden No tes 2011)

Legal Forms - Sample Legal Form Verification and Certification of Non-forumShopping

Republic of the Philippines)City of _______________ )s.s.

(Person verifying) after having been duly sworn deposes and says:1. That he is the (designation) in the above- entitled (name of pleading); that he hascaused its preparation; that he has read it and the allegations therein are true of his ownpersonal knowledge and based on authentic records;

2. That he certifies that he has not heretofore commenced any action or filed anyclaim involving the same issues before any other court, tribunal or quasi-judicial agency,that to the best of his knowledge, there is no other pending action or claim, and that if heshould thereafter learn that the same or similar action or claim has been filed or is

pending, he shall report such fact within five (5) days therefrom to this Honorable Court.

Party executing

JUAN DELA CRUZNOTARY PUBLIC- Makati CityAppointment No. ____Until December 31, 2010Roll no. ____PTR no. ____, date of issue, place of issueIBP no. _____, date of issue, place of issue

Office Address:Email:Contact Number:

Doc. No._____;Page No. ____;Book NO.____;Series of 2011

Legal Forms - Sample Form of Motion to Intervene

NAME, by counsel, respectfully prays that he be permitted to intervene in this case as a partyplaintiff/party-defendant on the ground that he has legal interest in the matter under litigation and

that he may be adversely affected in these proceedings as shown in the attached Complaint-in-Intervention/ Answer-in-Intervention.

WHEREFORE, it is respectfully prayed that ______________ be allowed to intervene as partyplaintiff/ party defendant and the attached complaint or answer in intervention be admitted and thatherein intervenor be allowed to serve copy of the same to the plaintiff/defendant.
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