Republic of the Philippines

MUNICIPAL CIRCUIT TRIAL COURT

Tiwi-Malinao, Albay
Fifth Judicial District
Tiwi, Albay

VHEE R. CARRASCAL (thru her Attorney-in-Fact,

MARIANO B. BARANDA, JR.),
Plaintiff,

-versus- CIVIL CASE NO. T-486

For: UNLAWFUL DETAINER

SOLON CLUTARIO (doing business as

“EL NOL FOOD HAUS”),
Defendant.
x------------------------------------x

PLAINTIFF’S POSITION PAPER

Plaintiff, VHEE R. CARRASCAL, through counsel, to this Honorable Court,

respectfully submits this Position Paper in the above-entitled case, thus:

THE PARTIES

Plaintiff, Vhee R. Carrascal, (hereinafter referred to as plaintiff) acting

through her Attorney-in-fact, Atty. Mariano B. Baranda, Jr., is of legal age, and a

resident of Las Vegas, Nevada, U. S. A., (but for purposes of the present action

may be served with the processes of the court at the office of her aforementioned

resident agent). Defendant, Solon Clutario, doing business under the name and

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style of “EL NOL FOOD HAUS” is likewise of legal age, and a resident of Tigbi, Tiwi,

Albay, where he may be served with the processes of the court.

STATEMENT OF TIMELINESS

Plaintiff received, through counsel, a copy of the Preliminary Conference

Order dated January 26, 2012, on February 09, 2012, giving the parties ten (10)

days from receipt thereof within which to file their respective Position Paper.

Thus, plaintiff has until February 18, 2012 and propitiously filed the same shortly

before said date.

STATEMENT OF THE CASE

This is an ejectment case for unlawful detainer which plaintiff filed

against the defendant before the Municipal Trial Circuit Court of Tiwi-Malinao,

Albay, on October 27, 2011, primarily for failure of the latter to pay the former

the agreed monthly rentals, and secondarily, for expiration of the lease contract.

THE STATEMENT OF FACTS

On July 8, 2010, plaintiff and defendant entered into a written lease

agreement (Annex “A”, Complaint; Exh. “D”, infra) regarding the subject premises

where he presently conducts and holds his business known as “EL NOL FOOD

HAUS.” The initial monthly rental was Php5, 000.00 and subsequently adjusted to

Php5, 500.00 in an addendum (Annex “B”, Complaint; Exh. “E”, infra) dated February

28, 2011.

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 Prior to the signing of the aforementioned contract, defendant produced a

yellow pad paper, which according to him, was signed by plaintiff’s deceased

brother, Salvador Riosa, and showing an alleged loan of Php70,000.00. While the

said paper is highly questionable, and thus the supposed loan, inasmuch as

plaintiff’s brother is totally blind and has not been signing any document but

merely affixing his thumb print when the occasion called for it, plaintiff, to buy

peace and harmony, allowed the defendant to apply and plaintiff to credit the

rental from August 2010 to October 31, 2011 to the said “loan”, a fact duly

memorialized and authenticated by the respective signature of the parties at the

bottom of the aforesaid lease contract.

Contrary to his covenant under the lease contract and the addendum,

defendant failed and refused to pay the plaintiff his financial obligation. Written

demand (Annex “C”, Complaint; Exh. “F”, infra) has been made upon him to vacate the

premises and pay his overdue rent and arrearages but defendant obstinately

refused to do so.

Defendant, in his Answer, admitted having signed the lease contract but

reasoned out that allegedly, after realizing his mistake, he immediately

repudiated it by advising plaintiff’s attorney-in-fact to cancel the contract. By way

of Special and Affirmative Defenses, defendant posited that plaintiff has no cause

of action; that the subject premises were previously mortgaged to him by

Salvador Riosa, allegedly the real owner.

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 THE ISSUES

Based on defendant’s proffered defenses, the issues evolving there from

are as follows:

I – WHETHER OR NOT DEFENDANT’S REPUDIATION

IS SUFFICIENT AND OPERATE TO NULLIFY THE
PARTIES’ LEASE CONTRACT.

II – WHETHER OR NOT PLAINTIFF HAS A CAUSE OF

ACTION AGAINST THE DEFENDANT.

III – WHETHER OR NOT THERE WAS A VALID MORTGAGE

CONSTITUTED BY SALVADOR RIOSA OVER THE PREMISES
SUBJECT OF THE CONTRACT OF LEASE BETWEEN THE
PARTIES HEREIN.

THE ARGUMENTS

I – Whether or not defendant’s

repudiation is sufficient and
operate to nullify the parties’
contract.

The defendant, under oath, admitted having signed the lease contract but

undermined its legal significance by asserting that “. . . after realizing his mistake

in entering into said lease agreement, had immediately repudiated the same by

advising the herein attorney-in-fact of the plaintiff to cancel the contract.” (Par. 3,

Answer). It is a basic tenet on the law of contracts that “The contracts must bind

both the contracting parties; its validity or compliance cannot be left to the will of

one of them.” (Art. 1308, Civil Code of the Philippines) . Even assuming that defendant

was mistaken in entering into the aforesaid lease contract, thereby rendering the

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same to be voidable, yet the law likewise provides that “These contracts are

binding, unless they are annulled by a proper action in court. They are susceptible

of ratification.” (Last par. Art. 1390, Civil Code, supra.). Therefore, it looms clear and

unmistakable that defendant’s act of merely advising plaintiff’s attorney-in-fact to

cancel the contract is not sufficient and cannot operate to nullify the same. The

law requires no less than a court action to nullify the said contract of lease. Short

of doing that the vinculum juris between the parties subsist and they are

continuously governed thereby. More interestingly, the defendant ratified the

lease contract by executing an addendum thereto on February 28, 2011 ( Annex

“B”, Complaint, supra; Exh. “E”, infra).

II – Whether or not plaintiff has

a cause of action against the
defendant.

The defendant, in a desperate attempt to forestall the juggernaut of an

impending eviction, raise the farfetched defense that plaintiff has no cause of

action against the defendant. In determining the existence of a cause of action,

the Supreme Court once held, that:

“xxx xxx xxx

“The general rule is that the allegations in a complaint

are sufficient to constitute a cause of action against the defendants,
if, admitting the facts as alleged, the court can render a valid judgment
upon the same in accordance with the prayer therein”. (Dulay vs. Court
of Appeals, 243 SCRA 220).

“x x x xxx xxx

“A cause of action exist if the following elements are present,

namely: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or created;(2) an obligation on the part

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 of the named defendant to respect or not to violate such right;(3) an
act or omission on the part of such defendant violative of the rights
of the plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may maintain an action
for recovery of damages (supra).”

“xxx xxx x x x.”

The instant case is an action for unlawful detainer. Calibrating the plaintiff’s

Complaint with the paradigm formulated by the High Court in the Dulay case,

supra, one would easily see a sufficient cause of action in plaintiff’s Complaint

because all the requisite elements constituting the same are present in the said

Complaint, to wit: (1). a right in favor of the plaintiff arising from the lease

contract; (2). an obligation on the part of the named defendant to respect or not

to violate such right; (3). an act or omission of the defendant violative of the

rights of the plaintiff or constituting a breach of the obligation of the defendant to

the plaintiff.

III – Whether or not there was a

valid mortgage constituted by
Salvador Riosa over the premises
subject of the lease contract between
the parties herein.

The defendant, in an audacious attempt to parry the onslaught of plaintiff’s

ejectment complaint, averred that “ . . . (plaintiff) has no right to demand for the

herein defendant to vacate the premises (the stall occupied by the herein

defendant) considering the fact the same was previously mortgaged to him by the

(sic) Salvador Riosa, the real owner, in the amount of P70,000.00 on August 28,
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2007 as evidenced by the herein attached mortgage contact (sic) marked as Annex

‘1’. The stall has not yet been redeemed by the owner until today;” The unedited

text of the much vaunted mortgage contract is quoted, in toto, hereunder for

ready reference, thus:

“ I SALVADOR RIOSA, OWNER OF THE RENTAL OF

THE BUILDING THAT RENTED BY SOLON CLUTARIO, AT THE
FRONT OF LAGMAN SUPERMARKET, THEY HAD TO BARROW
THE AMOUNT OF (70,000) SEVENTY THOUSAND PESOS

“ON 28TH OF AUGOST 2007, the amount that I

mention to the agreement, will be furthermore I
blind myself to pay 10% as monthly interest, this
Agreement shall be in consonance with the
pertinent provision of the Philippine Civil Code

“Sign this 28th day of August 2007

“(Sgd.) Ineligible (Sgd.) Ineligible

“SALVADOR RIOSA SOLON CLUTARIO
“Mortgagor Mortgagee”

“xxx xxx x x x.”

Ignoring its extreme grammatical imperfection, and except for the words

“Mortgagor” and “Mortgagee”, there is nothing in the aforequoted agreement

that would suggest that it is a mortgage contract. Rather, it is more of a receipt of

a questionable loan. However, whatever it is worth is rendered moot and

academic by the rider that was inserted by the parties at the bottom of the

principal contract of lease (Exh.”D”, infra) duly authenticated with their respective

signature. The said rider reads, as follows:

“NOTE: LESSEE HEREBY ACKNOWLEDGES THAT HIS CREDIT OF

P70, 000.00 AND ALL OTHER CHARGES FROM SALVADOR RIOSA
SHALL CONSTITUTE AS PAYMENT OF THE RENTALS FOR THE
ENTIRE PERIOD FROM AUGUST 2010 UNTIL OCTOBER 31, 2011.”
“(Sgd.) Illegible (Sgd.) Illegible”
(Vhee R. Riosa) (Solon Clutario)

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 The total rental for the period from August 2010 up to October 31, 2011 is

in the amount of Php75, 000.00, which is more than the supposed loan of

plaintiff’s brother. As it now stands, the defendant is already over paid by Php5,

000.00. This is not mention the fact that since 2007, defendant has not been

paying his rentals on the premises which translates into a hefty sum of Php180,

000.00. In view thereof, the said perceived mortgage contract has completely lost

the wind beneath its wing.

Incidentally, defendant’s asseveration that plaintiff’s brother, Salvador

Riosa, is the owner of the stall that he is presently occupying has no factual and

legal basis. As to the lot over which the stall is built, the same is still the subject of

contentious litigation and pending before the Court of Appeals. As to the stall

itself, the same was built with plaintiff’s fund. Her brother possessed the same

with her permission subject to the condition that she will regain its possession

once the former does not have a need for it. (Exhibits “A” to “C”, inclusive).

THE SUPPORTING EVIDENCE

Plaintiff, in support of this Position Paper, hereby submits and offered the

following testimonial and documentary evidence, accordingly marked as exhibits,

and the purposes for which they are offered, to wit:

Nature Purpose
Exh. “A” – Vhee R. Carrasca’s Affidavit 1. To prove that plaintiff is the owner of the
leased premises; that said premises were
built with her own funds; that her
brother’s possession of the same is with

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 her permission.
2. To prove that while she does not recognize
her brother’s loan, just to buy peace and
harmony in the premises, she allowed the
application of the rentals for August 2010
to October 31, 2011 to the supposed loan.
Exh. “B” – Adelaida Da Riosa’s Affidavit 1. To corroborate the substance of plaintiff’s
testimony.
Exh. “C” – Dolores “Ding” Vallarta’s Affidavit 1. To corroborate the substance of Adeliada
Riosa and plaintiff’s testimony.
Exh. “D” – Lease Contract, dated July 8, 2010 1. To prove the contractual relation between
plaintiff and defendant; the terms and
conditions contained therein.
2. To prove that plaintiff and defendant
agreed to apply the rentals for August
2010 to October 31, 2011 to the supposed
loan of Salvador Riosa.
3. To prove that the contract has already
expired.
Exh. “E” – Addendum, dated February 28, 1. To prove that defendant has ratified the

2011 said contract; the adjustment of monthly

rental.
Exh. “F” – Plaintiff’s Demand Letter, dated 1. To prove that plaintiff made the demand

August 4, 2011 upon the defendant for him to vacate the

premises and to pay the overdue rental
and arrearages.

THE PRAYER

PREMISES CONSIDERED, it is respectfully prayed of this Honorable Court,

that after due consideration, judgment be rendered in favor of the plaintiff and

against the defendant, as follows:

1. Ordering defendant and/or other persons claiming rights, title or

interest under him to restore the possession of the subject

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 premises to plaintiff in good and tenantable condition, including

all improvements found therein without right to reimbursement;

2. Ordering the defendant to pay the plaintiff the sum of

Php31,000.00 as of March 31, 2012, or the actual amount owing

to the plaintiff as rental arrearages, plus legal rate of interest

thereon from the filing of the Complaint;

3. Ordering defendant to pay the plaintiff the sum of Php20,000.00

as and for attorney’s fees;

4. Ordering the defendant to pay the plaintiff the cost of suit.

Plaintiff further prays for such relief as may be just and equitable under the

premises.

Legazpi City, for Tiwi, Albay, Philippines, this 14th day February, 2012.

BARANDA BUSALLA & MAGISTRADO LAW OFFICE

2nd Floor ABC Building, Rizal Street
Albay District, Legazpi City
Telefax: (052) 480-5645
Counsel for the Plaintiff

By:

MARIANO B. BARANDA, JR.

PTR NO. 7575765 dtd 01=10-12
IBP NO. 759778 dtd 01-03-12
ROLL NO. 26948 dtd. 4-29-77
MCLE EXEMPTION NO. II-002299 dtd. 12-10-08

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Copy furnished through Personal Service:

Atty. Edgar Conde

District Public Attorney
Public Attorney’s Office
Tabaco City, Albay

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