Republic of the Philippines

MUNICIPAL TRIAL COURT

Sixth Judicial Region

Kalibo, Aklan

FULGENCIA B. ZABAL

Joined by her husband,

EDGARDO ZABAL,

Plaintiffs,

-versus- Civil Case No. 2678

For: SPECIFIC PERFORMANCE

NENIA P. BAUTISTA AND ROMULO

BELLO,

Defendants.

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D E C I S I O N

This has reference with the amended complaint for Specific Performance filed by the plaintiffs Fulgencia Zabal and Edgardo Zabal against the defendants Nenia P. Bautista and Romulo Bello.

The plaintiffs substantially alleged in their amended complaint that on February 7, 2002, plaintiff Fulgencia Zabal and defendant Nenia Bautista entered into an amicable settlement before the Office of the Lupong Tagapamayapa of Barangay New Buswang, Kalibo Aklan relative to the amount of Sixty Three Thousand Pesos (P63,000.00) advanced by the plaintiffs in the construction of the house of the defendants. In their amicable settlement1, it was agreed among others, that defendant Nenia Bautista should pay the amount of Sixty Three Thousand Pesos (63,000.00) to Fulgencia Zabal provided that the latter will vacate the house of the former after the payment of the said amount. On February 28, 2002, defendant Nenia Bello through her authorized representative instituted the case docketed as Civil Case No. 6520 for Recovery of Possession, Demand for Payment and Damages dated February 19, 2002 before Branch 7, Regional Trial Court of Aklan2 which complaint was subsequently later amended on March 14, 20033. On the other hand, defendants filed their answer4 and maintained therein Nenia Bautista’s obligation to pay the amount of Sixty Three Thousand Pesos (63,000.00). On January 24, 2005, the Regional Trial Court dismissed both the complaint and counterclaim of the parties without prejudice. Defendant Nenia Bautista reneged on her obligation and she failed to pay her obligation despite the fact that the plaintiffs had long vacated defendants’ house as shown in the Barangay Certification issued by the Barangay Captain of Barangay New Buswang, Kalibo, Aklan. The amicable settlement between plaintiff Fulgencia Zabal and the defendant Nenia Bautista had already the force and effect of a final judgment and defendants had never repudiated the agreement. Likewise, the said Barangay agreement had not been enforced through execution by the Lupon within six (6) months from its date. Plaintiff Fulgencia Zabal and defendant Nenia Bautista are sisters and the former had exerted efforts to amicably settle this case and due to the refusal of the defendants to pay their obligation, plaintiffs were compelled to institute the present case and incurred expenses in the amount of P10,000.00 as acceptance fee and P1,000.00 as appearance fee. Similarly, due to the unjustifiable refusal to comply with her obligation, plaintiff suffered moral damages in the amount of P100,000.00 and exemplary damages in the amount of P50,000.00 by way of deterrence to others. Likewise, defendant should be held liable for interest in the principal amount of 12% to be reckoned from February 12, 2002, the date of the amicable settlement.

A perusal of the records revealed that copy of the summons was served on the defendants through substituted service on Ely Bautista. A Motion to Declare Defendants in Default was filed by the plaintiffs but the same was denied on August 19, 2005 because Ely Bautista is not the authorized representative of the defendants. Subsequently, a Motion to Amend Complaint was filed on January 20, 2006 to reflect the last address of the defendants which was granted on January 30, 2006 and this Court even required that summons pursuant to the amended complaint be served on the defendants by registered mail. However, the same was returned in Court on February 14, 2006 for reason that the addressee is “Abroad. Thus, the plaintiffs on June 6, 2008 filed a Motion for the issuance of summons by publication and the same was granted on October 16, 2008. The said summons was published together with the amended complaint on October 27, 2008 in Panay News. The defendants did not file their answer within (90) ninety days from the date it was published on October 27, 2008, hence, plaintiffs’ Motion to Declare Defendants in Default on February 24, 2009 and accordingly, plaintiffs were allowed to present evidence ex parte on March 20, 2009.

The plaintiff’s evidence is comprised of the testimony of Fulgencia Zabal and Exhibits A to D. and their adjuncts as documentary evidence.

According to the said complaining witness, she knew the defendants as Nenia Bautista who is her sister while Nino Bello is her brother in-law. On February 7, 2002, she and defendant Nenia Bautista appeared before the Lupong Tagapamayapa of Barangay New Buswang, Kalibo, Aklan where Nenia Bautista agreed to pay her the amount of P63,812.50 provided she will leave the house of her sister, Nenia Bautista, as embodied in an amicable settlement5 executed by them before the said Lupon. The said settlement was verified by Pangkat Chairman Auxiliador Melgarejo, and Pangkat Secretary Zabathala Fausino, including Barangay Captain Lucrecia Tayco.

Her sister even instituted Civil Case No. 6520 for Recovery of Possession, Demand for Payment of Rentals and Damages before Branch 7, Regional Trial Court of Aklan which case however, was dismissed pursuant to the Order of said Court dated January 27, 2007. Plaintiffs had complied with their obligation when they left the said house and transferred to their residence on May 21, 2002 as shown by the Barangay certification issued by the Office of the Barangay Captain on June 25, 2002. On the contrary, defendants have not complied with their obligation and in order to enforce the amicable settlement, she secured the services of a lawyer whom she agreed to pay the amount of P10,000.00 and she has spent P20,000.00 litigation expenses as evidenced by official receipts6 including the expenses for publication in the amount of P6,000.00. She also suffered moral shock by reason of the institution of the said previous civil case and if the same shall be quantified in terms of money, the same shall amount to P100,000.00.

From the foregoing evidence, the plaintiffs were able to establish that an Amicable Settlement was entered into by the parties on February 7, 2002 whereby the defendants agreed to pay the amount of P63,812.50, provided the plaintiffs will vacate her house. Plaintiffs had complied with their obligation when they left the house of the defendants as shown by the Barangay Certification dated June 25, 2002. However, the defendants have breached their obligation to pay as agreed upon in the subject settlement.

More than two years have lapsed since the time the amicable settlement was entered into by the parties and no repudiation of the said settlement was made by the defendants to booth its implementation pursuant Sec. 418 of the Local Government Code of 1991. Consequently, under Sec. 416 of the same Code, the amicable settlement has the force and effect of a judgment.

As to plaintiffs’ claim of interest, Article 2209 of the New Civil Code provides that, “If the obligation consist in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be payment of the interest agreed upon, and in the absence of stipulation, the legal interest of six percent per annum”. Thus, plaintiffs are entitled collect interest to be reckoned from the constructive notice to the defendant on February 15, 2009.

As to the last issue of whether the prevailing party is entitled to damages, this Court, under the factual milieu of this case, could not discern of any legal or equitable justification, in the absence of proof to award such claim as the adjudication thereof cannot be left to speculation or conjecture while their claim of attorney fees and litigation expense is granted but in a reduced amount of Ten Thousand Pesos (10,000.00).

WHEREFORE, premises considered, judgment is hereby rendered ordering the defendants to pay the plaintiffs the amount of Sixty Three Thousand Pesos (63,000.00) with six percent interest (6%) per annum to be computed from February 15, 2009 until fully paid and attorney’s fees as well as litigation expenses in the amount of Ten Thousand Pesos (P10,000.00).

SO ORDERED.

Kalibo, Aklan, Philippines.

March 30, 2009

(Sgd.) ALICIA A. CRUZ – BARRIOS

Presiding Judge

Madyaas Pen: February 4, 2012