Republic of the
Supreme Court
THIRD DIVISION
|
EMERITA M. DE GUZMAN, Petitioner, - versus - ANTONIO M. TUMOLVA, Respondent. |
|
G.R. No. 188072 Present: VELASCO, JR., J., Chairperson, PERALTA, BERSAMIN,* Promulgated: October 19, 2011 |
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D E C I S I O N
MENDOZA, J.:
This
is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court assailing the February 24, 2009 Decision[1] of
the Court of Appeals (CA) and its May 26, 2009 Resolution[2] in CA-G.R. SP. No. 104945 entitled Antonio
M. Tumolva v. Emerita M. De Guzman.
The Facts
On
On
In
November 2006, during typhoon Milenyo, a portion of the perimeter fence
collapsed and other portions tilted. In her Letter dated
On
In
his Answer with Counterclaim, the Contractor denied liability for the damaged
fence claiming, among others, that its destruction was an act of God. He admitted making deviations from the plan, but
pointed out that the same were made with the knowledge and consent of De Guzman
through her representatives, Architect Quin Baterna and Project Engineer
Rodello Santos (Engineer Santos), who were present during the
construction of the fence. He further argued
that pursuant to the Agreement, the claim for damages was already barred by the
12-month period from the issuance of the Certificate of Acceptance of the project
within which to file the claim. He,
thus, prayed for the dismissal of the action and interposed a counterclaim for
actual and compensatory damages for the additional work/change orders made on
the project in the amount of ₱2,046,500.00, attorneys fees and
litigation expenses.
After due proceedings, the CIAC
issued the Award dated July 17, 2008 in favor of De Guzman, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered and AWARD
is made on the monetary claims of
Claimant EMERITA M. DE GUZMAN,
directing Respondent Contractor ANTONIO M. TUMOLVA, to pay her the following amounts:
₱187,509.00 as actual damages for reconstructing the collapsed and
damaged perimeter fence.
Interest
is awarded on the foregoing amount at the legal rate of 6% per annum
computed from the date of this
Award. After finality thereof, interest
at the rate of 12%
per annum shall be paid thereon until full payment of the awarded amount shall
have been made, this interim period being deemed to be at that time already
a forbearance of credit (Eastern Shipping Lines, Inc. v. Court of Appeals
(243 SCRA 78 [1994])
₱100,000.00
as moral damages.
₱100,000.00 as
exemplary damages.
₱50,000.00 for attorneys fees and expenses of litigation.
₱437,509.00 TOTAL AMOUNT DUE THE CLAIMANT
The
CIAC staff is hereby directed to make the necessary computation of how much has
been paid by Claimant as its proportionate share of the arbitration costs
totaling ₱110,910.44,
which computed amount shall be reimbursed by Respondent to the Claimant.
SO
ORDERED.[7]
Aggrieved, the Contractor filed
before the CA a Petition for Review with prayer for the issuance of a temporary
restraining order, challenging the CIACs award of damages in favor of De
Guzman.
On
WHEREFORE,
the instant petition is partly GRANTED. The assailed Award
dated July 17, 2008 rendered by the CIAC in CIAC Case No. 03-2008 is hereby MODIFIED, deleting the award of actual, moral and
exemplary damages, but awarding temperate damages in the amount of ₱100,000.00 for reconstructing the
collapsed and damaged perimeter fence.
The rest of the Award stands.
SO ORDERED.[8]
The CA held that although the
Contractor deviated from the plan, CIACs award of actual damages was not
proper inasmuch as De Guzman failed to establish its extent with reasonable
certainty. The CA, however, found it appropriate
to award temperate damages considering that De Guzman suffered pecuniary loss
as a result of the collapse of the perimeter fence due to the Contractors
negligence and violation of his undertakings in the Agreement. It further ruled that there was no basis for
awarding moral damages reasoning out that De Guzmans worry for the safety of
the children in the orphanage was insufficient to justify the award. Likewise, it
could not sustain the award of exemplary damages as there was no showing that the
Contractor acted in wanton, reckless, fraudulent, oppressive, or malevolent
manner.
De Guzman filed a motion for
reconsideration of the said decision, but it was denied for lack of merit by
the CA in its Resolution dated
Hence, De
Guzman interposed the present petition before this Court anchored on the
following
GROUNDS
(I)
THE COURT OF APPEALS ERRED IN RULING THAT THE EVIDENCE ON RECORD FAILED TO SUFFICIENTLY ESTABLISH THE AMOUNT OF ACTUAL DAMAGES THAT PETITIONER DE GUZMAN CAN RECOVER FROM THE RESPONDENT.
(II)
THE COURT OF
APPEALS ERRED IN RULING THAT PETITIONER DE GUZMAN IS NOT ENTITLED TO AWARDS OF
MORAL AND EXEMPLARY DAMAGES.[9]
De Guzman argues
inter alia that the Contractor is liable for the actual damages that she
suffered from the collapse of the perimeter fence. He failed to put weep holes
on the collapsed portion of the said fence, which could have relieved the
pressure from the wet soil of the adjoining higher ground.
De Guzman adds that the computation of the
cost of rebuilding the collapsed portion of the perimeter fence by Engineer
Santos constituted substantial evidence warranting an award of actual damages. His affidavit served as his direct testimony
in the case even if he did not appear during the hearing. Having been
notarized, it must be admissible in evidence without further proof of
authenticity.
Further, De Guzman questions the CAs deletion of the award for moral and
exemplary damages. She insists that her
anxiety and suffering over the safety of the children in the orphanage entitled
her to an award of moral damages. It is
likewise her position that the Contractors wanton acts of deliberately
cheating the benefactors of the orphanage by making deviations on the approved plan
through the use of construction materials of inferior quality warranted the
imposition of exemplary damages against the Contractor.
The Courts ruling
There is no doubt that De Guzman incurred
damages as a result of the collapse of the perimeter fence. The Contractor is clearly
guilty of negligence and, therefore, liable for the damages caused. As correctly found by the CA:
Nonetheless, the Court sustains the
CIACs conclusion that the CONTRACTOR was negligent in failing to place
weepholes on the collapsed portion of the perimeter fence. Fault or negligence of the obligor consists
in his failure to exercise due care and prudence in the performance of the
obligation as the nature of the obligation so demands, taking into account the
particulars of each case. It should be
emphasized that even if not provided for in the plan, the CONTRACTOR himself
admitted the necessity of putting weepholes and claimed to have actually placed
them in view of the higher ground elevation of the adjacent lot vis--vis
the level ground of the construction site.
Since he was the one who levelled the ground and was, thus, aware that
the lowest portion of the adjoining land was nearest the perimeter fence, he
should have ensured that sufficient weepholes were placed because water would
naturally flow towards the fence.
However, the CONTRACTOR failed to refute Mr.
Ramos claim that the collapsed portion of the perimeter fence lacked
weepholes. Records also show that the
omission of such weepholes and/or their being plastered over resulted from his
failure to exercise the requisite degree of supervision over the work, which is
the same reason he was unable to discover the deviations from the plan until
the fence collapsed. Hence, the
CONTRACTOR cannot be relieved from liability therefor.[10]
The Court finds no compelling reason
to deviate from this factual finding by the CIAC, as affirmed by the CA. It is
settled that findings of fact of quasi-judicial bodies, which have acquired
expertise because their jurisdiction is confined to specific matters, are
generally accorded not only respect, but also finality, especially when
affirmed by the CA. In particular, factual findings of construction arbitrators
are final and conclusive and not reviewable by this Court on appeal.[11]
CIACs award of actual damages,
however, is indeed not proper under the circumstances as there is no concrete evidence
to support the plea. In determining actual damages, one cannot rely on
mere assertions, speculations, conjectures or guesswork, but must depend on
competent proof and on the best evidence obtainable regarding specific facts
that could afford some basis for measuring compensatory or actual damages.[12] Article
2199 of the New Civil Code defines actual or compensatory damages as follows:
Art. 2199. Except as provided by law or by stipulation, one
is entitled to an adequate compensation only for such pecuniary loss suffered
by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
Unfortunately,
De Guzman failed to adduce evidence to satisfactorily prove the amount of
actual damage incurred. Contrary to her
assertion, the handwritten calculation of reconstruction costs made by Engineer
Santos and attached to his affidavit cannot be given any probative value
because he never took the witness stand to affirm the veracity of his
allegations in his affidavit and be cross-examined on them. In this regard, it is well to quote the
ruling of the Court in the case of Tating v. Marcella,[13]
to wit:
There is no issue on the admissibility of
the subject sworn statement. However, the admissibility of evidence should not
be equated with weight of evidence. The admissibility of evidence depends on
its relevance and competence while the weight of evidence pertains to evidence
already admitted and its tendency to convince and persuade. Thus, a particular
item of evidence may be admissible, but its evidentiary weight depends on
judicial evaluation within the guidelines provided by the rules of evidence. It
is settled that affidavits are classified as hearsay evidence since they are
not generally prepared by the affiant but by another who uses his own language
in writing the affiants statements, which may thus be either omitted or
misunderstood by the one writing them. Moreover, the adverse party is deprived
of the opportunity to cross-examine the affiant. For this reason, affidavits
are generally rejected for being hearsay, unless the affiants themselves are
placed on the witness stand to testify thereon.
Neither is
there any evidence presented to substantiate Engineer Santos computation of the
reconstruction costs. For such
computation to be considered, there must be some other relevant evidence to
corroborate the same.[14] Thus, the CA was correct in disregarding the affidavit
of Engineer Santos for being hearsay and in not giving probative weight to it. There
being no tangible document or concrete evidence to support the award of actual
damages, the same cannot be sustained.
Nevertheless,
De Guzman is indeed entitled to temperate damages as provided under Article
2224 of the Civil Code for the loss she suffered. When pecuniary loss has been suffered but the
amount cannot, from the nature of the case, be proven with certainty, temperate
damages may be recovered. Temperate
damages may be allowed in cases where from the nature of the case, definite
proof of pecuniary loss cannot be adduced, although the court is convinced that
the aggrieved party suffered some pecuniary loss.[15] Undoubtedly, De Guzman suffered pecuniary
loss brought about by the collapse of the perimeter fence by reason of the
Contractors negligence and failure to comply with the specifications. As she failed
to prove the exact amount of damage with certainty as required by law, the CA
was correct in awarding temperate damages, in lieu of actual damages. However, after weighing carefully the
attendant circumstances and taking into account the cost of rebuilding the
damaged portions of the perimeter fence, the amount of ₱100,000.00
awarded to De Guzman should be increased.
This Court, in recognition of the pecuniary loss suffered, finds the
award of ₱150,000.00 by way of temperate damages as reasonable and just
under the premises.
As to the
CIACs award of ₱100,000.00 as moral damages, this Court is one with the
CA that De Guzman is not entitled to such an award. The record is bereft of any proof that she actually
suffered moral damages as contemplated in Article 2217 of the Code, which
provides:
Art.
2217. Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate result of the
defendants wrongful act or omission.
Certainly, the award of moral damages
must be anchored on a clear showing that she actually experienced mental
anguish, besmirched reputation, sleepless nights, wounded feelings, or similar
injury. There could not have been a better witness to this experience than De
Guzman herself.[16] Her testimony, however, did not provide
specific details of the suffering she allegedly went through after the fence
collapsed while she was miles away in the
Moreover, under the
aforequoted provision, moral damages cannot be recovered as the perimeter fence
collapsed in the midst of the strong typhoon Milenyo. It was not clearly
established that the destruction was the proximate result of the Contractors
act of making deviation from the plan.
As correctly concluded by the CA, viz:
However, while
it cannot be denied that the Contractor deviated from the plan, there was no
clear showing whether the same caused or contributed to the collapse/tilting of
the subject perimeter fence. No
competent evidence was presented to establish such fact. As the CIAC itself acknowledged, (t)here is
no way by which to accurately resolve this issue by the evidence submitted by
the parties. The statement of Edwin B.
Ramos, Engineering Aide at the Office of the Municipal Engineer of Silang,
Cavite, who conducted an ocular inspection of the collapsed perimeter fence,
that the observed deviations from the plan affected the strength of the fence
and made it weaker, such that its chance of withstanding the pressure of water
from the other side thereof was greatly diminished or affected was merely an
expression of opinion. As he himself
admitted, he is not qualified to render an expert opinion.[19]
Further, De Guzman was not able to
show that her situation fell within any of the cases enumerated in Article 2219[20]
of the Civil Code upon which to base her demand for the award of moral damages.
Neither does the breach of contract committed
by the Contractor, not being fraudulent or made in bad faith, warrant the grant
of moral damages under Article 2220 which provides that:
Art. 2220. Willful
injury to property may be a legal ground for awarding moral damages if the
court should find that, under the circumstances, such damages are justly due.
The same rule applies to breaches of contract where the defendant acted
fraudulently or in bad faith.
De Guzman cannot be awarded exemplary
damages either, in the absence of any evidence showing that the Contractor
acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner as provided
in Article 2232 of the Civil Code. The
ruling in the case of Nakpil and
Sons v. Court of Appeals,[21]
relied upon by De Guzman, where it was emphasized that the wanton negligence in
effecting the plans, designs, specifications, and construction of a building is
equivalent to bad faith in the performance of the assigned task, finds no
application in the case at bench. As
already pointed out, there is negligence on the part of Contractor, but it is neither
wanton, fraudulent, reckless, oppressive, nor malevolent.
The award of exemplary damages cannot be made merely on the allegation of
De Guzman that the Contractors deviations from the plans and specifications
without her written consent was deplorable and condemnable. The Court regards the deviations as excusable
due to the unavailability of the approved construction materials. Besides,
these were made known to De Guzmans project manager who was present all the
time during the construction. Indeed, no deliberate intent on the part of the Contractor
to defraud the orphanages benefactors was ever shown, much less proved. As may be gleaned from his testimony:
xxx
2.2.0 :
What can you say to the claim that the column rebars were reduced in
size from 12mm to 10mm?
A
: That is untrue.
2.2.1
: Why did you say that it was
untrue?
A :
Because the column rebars that we used is 12mm and not 10mm contrary to the
claim of the claimant. The column rebars
that claimant and his engineers claimed to have been undersized [were] those
already subjected to stretching. Due to
the lateral load on the perimeter fence coming from the water that accumulated
thereon, the strength of the column bars was subjected to such kind of force
beyond its capacity thereby resulting them to yield or mapatid. As a result
of such stretching, the column rebars were deformed thereby causing it [to] change
its width but the length was extended.
You can compare it to a candy like tira-tira which if you stretch it
becomes longer but its width is reduced.
The other column rebars on the perimeter fence which [were] not subjected
to stretching will prove what I am stating.
2.2.2 : Also, in the said request for arbitration, it
was claimed that the required hollow blocks (CHB) was reduced also from #6 to
#5, how would you explain this?
A
: It is true but such deviation
was known to them in view of the fact that there was no available CHB #6 in
Silang, Cavite and so to save on the travel cost in bringing materials from
Manila to the site, it was agreed that such CHB #5 shall be used instead.
2.2.3 :
What was the effect of such deviation in using CHB #5 instead of CHB #6?
A :
No effect, madam.
2.2.4
: Why did you state so, Mr. Witness?
A : Because
the entire area of the land which is being secured by the perimeter fence was
fully covered with the fence which is made of CHB. This simply implies that
even though we used a much lesser size of CHB, but we increased the compressive
strength of the mortar and filler used in the premises. This has really no effect because we cover
the entire place with fence.
2.2.5 : It was also claimed that the distance between columns was deviated from 3.0 m. to 4.0 m, will you
please explain this matter.
A : The computation of the distance between
the columns of the perimeter fence as appearing on the plan was 3.0 m inside to
inside. However, the computation made by
the engineer of the claimant as alleged in their Request for Arbitration was
4.0 m. outside to outside which should be 3.6 m. outside to outside as correct
distance.
2.2.6
: It
now appears from your statement that there was a deviation as between the 3.0
m. inside to inside computation in the plan and the actual 3.6 m. outside to
outside computation made by the engineers of the claimant. My question Mr. Witness is, what would be the
effect of such deviation on the columns?
A : It is true that there was such a deviation on
the distance of the column but it will
have no effect because still the factor of safety was well provided for. Even the existing law on building construction
supports this matter. I even sought Engineer Rommel Amante on the matter and
his report supports my allegation.
2.2.7
: Was
such deviation approved by the claimant or the representatives of the claimant?
A :
Yes because during all the
time the construction of the perimeter fence was done, the project manager of
the claimant was present and observing the works. Further, they have executed a Certificate of
Final Acceptance of the project.[22]
xxx
As regards the award of attorneys
fees, the Court upholds De Guzmans entitlement to reasonable attorneys fees,
although it recognizes
that it is a sound policy not to set a premium on the right to litigate.[23] It must be recalled that De Guzmans repeated
demands for the repair of the fence or the payment of damages by way of
compensation, were not heeded by the Contractor. The latters unjust refusal to satisfy De
Guzmans valid, just and demandable claim constrained her to litigate and incur
expenses to protect her interest.
Article 2208 of the Civil Code, thus, provides:
Art. 2208. In the absence of stipulation,
attorneys fees and expenses of litigation, other than judicial costs, cannot
be recovered, except:
xxx
(2) When the defendants act or omission
has compelled the plaintiff to litigate with third persons or to incur expenses
to protect his interest;
xxx
Finally, the dismissal of the Contractors
counterclaim is sustained for lack of merit.
In his Comment[24]
and Memorandum,[25] the Contractor
pleaded that damages should have been awarded to him. This deserves scant
consideration. A perusal of the record
reveals that the matter as regards the return of what he had donated by reason
of De Guzmans ingratitude was not among the issues raised in this petition. Thus,
the same cannot be taken cognizance by the Court.
WHEREFORE,
the petition is DENIED. The Decision of the Court of Appeals dated
SO ORDERED.
JOSE CATRAL
Associate Justice
WE CONCUR:
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
PERALTA LUCAS P.
BERSAMIN
Associate
Justice Associate Justice
BIENVENIDO
L. REYES
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson,
Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
RENATO
C. CORONA
Chief Justice
* Designated as additional member in lieu of
Associate Justice Roberto A. Abad, per Raffle dated
** Designated as additional member in lieu of
Associate Justice Estela M. Perlas-Bernabe, per Raffle dated
[1] Rollo, pp.
39-46. Penned by Associate Justice
Estela M. Perlas-Bernabe (now a member of this Court), with Associate Justice
Mario L. Guaria III and Associate Justice Marlene Gonzales-Sison, concurring.
[2]
[3]
[4] Annex E of Petition, id. at 68.
[5] Annex D of Petition, id. at 61-66.
[6]
[7] Annex K of Petition, id. at
164-165.
[8] Annex A of Petition, id. at 46.
[9] Rollo, pp. 25 and
29.
[10]
[11] Shinryo (Philippines) Company, Inc. v. RRN Incorporated, G.R. No. 172525, October 20, 2010, 634 SCRA 123, 130, citing IBEX International, Inc. v. Government Service Insurance System, G.R. No. 162095, October 12, 2009, 603 SCRA 306.
[12]
Soriano v. Marcelo, G.R. No. 163178, January 30, 2009, 577 SCRA 312,
320, citing Ilao-Oreta v. Ronquillo, G.R. No. 172406, October 11, 2007,
535 SCRA 633-642; MCC Industrial Sales Corporation v. Ssangyong Corporation,
G. R. No. 170633, October 17, 2007, 536 SCRA 408, 468.
[13] G.R. No. 155208,
[14] Philippine Long Distance Telephone Company, Inc. v. Tiamson, 511 Phil. 384 (2005).
[15] Seguritan v. People of the
Philippines, G.R.
No. 172896,
[16] Philippine Savings Bank v. Sps. Maalac,
Jr , 496 Phil. 671 (2005), citing Mahinay v. Atty. Velasquez, Jr.,
464 Phil. 146 (2004).
[17] Rollo, p. 45.
[18]
Metropolitan Bank and Trust
Co. v. Perez, G.R. No. 181842, February 5, 2010, 611 SCRA 740, 746,
citing Bank of
Commerce v. Sps. San Pablo, G.R. No. 167848, April 27, 2007, 522 SCRA 713, 715.
[19] Rollo, p. 44.
[20] Art. 2219. Moral
damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred
to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.
[21] 243 Phil. 489 (1988).
[22] Rollo, pp. 125-126.
[23] Northwest
Airlines, Inc. v. Chiong, G.R. No. 155550,
[24] Rollo, pp. 289-323.
[25]