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Specific Performance
Exercise 3

Republic of the Philippines

11th Judicial Region
REGIONAL TRIAL COURT
Branch 21
Bansalan, Davao del Sur

JANI DEP, RYAN REENOLDS

Plaintiffs,

Civil Case No. 002

For: SPECIFIC PERFORMANCE
FOR ACCOUNTING AND
LIQUIDATION, DAMAGES and
ATTORNEY’S FEES WITH PRAYER
FOR TEMPORARY RESTRAINING
ORDER (TRO), PRELIMINARY
AND PERMANENT INJUNCTION
-versus –

WAYNE RAIDER,
Defendant.
x------------------------------------- /

COMPLAINT
with APPLICATION FOR ISSUANCE OF A
TEMPORARY RESTRAINING ORDER (TRO)

Plaintiffs, through counsel most respectfully manifest that:

THE PARTIES

1. Plaintiff JANI DEP is of legal age, Filipino, married,

GENGENLINA J. DEP and a resident of Alta Vusta, Bansalan, Davao
del Sur;
2. Plaintiff RYAN REENOLDS is of legal age, Filipino,
married to NICOLE K. REENOLDS, and a resident of Mamatay,
Bansalan, Davao del Sur, for purposes of the instant case, the
plaintiffs may be served with summons and court processes at the
counsel’s address given below;
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3. Defendant WAYNE RAIDER is of legal age, Filipino,

married to REGINA B. RAIDER, and a resident of Kangkong Street,
Bansalan, Davao del Sur. Summons and other court processes
addressed to the defendant may be served at the said address of the
defendant;
4. Parties have the capacity to sue and be sued.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

In support of all causes of action of herein plaintiffs, plaintiffs

respectfully allege that:

5. On 20 January 2016, plaintiffs voluntarily associated

themselves together for the purpose of recognizing and affirming an
existing business partnership or joint venture;

6. The conditions and terms of their voluntary association

for the purpose of acknowledging an existing business partnership or
joint venture are set forth in a Memorandum of Agreement appearing
in the notarial registry of Atty. Dominic E. Embodo, a notary public
for and in the province of Davao del Sur as Doc. No. 96, Page No. 19,
Book No. 09, Series of 2016;

7. Plaintiffs and defendant, through the Memorandum of

Agreement, affirmed the formation and existence of “Haliwood
Marketing Services”. Albeit the said business is registered in the
name of defendant, as the sole proprietor, plaintiffs have equal
contribution in the resources and capital consisting of PHP 100,000
each, inorder to materialize the said business, which in reality is a
joint venture of plaintiffs and defendant;
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Copy of the Memorandum of Agreement is attached as

ANNEX “A”;
8. After the Memorandum of Agreement was forged affirming
the existing joint venture agreement or business partnership between
and among plaintiffs and the defendant, the latter committed breach
of the said agreement;

9. Defendant, without a formal turnover, information upon the

plaintiffs, or a tender of his resignation, ceased being the manager of
“Haliwood Marketing Services” the joint venture business. He
abandoned his post as manager of and set up another business
competition of the said existing business partnership;

10. On 07 April 2017, defendant opened a store for furnitures,

located at Ramon delos Cientos Street, Bansalan, Davao del Sur;

11. Plaintiffs were surprised to learn that defendant left his post

without informing them, or providing them an accounting or

liquidation of the assets and liabilities of the business.

FIRST CAUSE OF ACTION:

SPECIFIC PERFORMANCE

Plaintiffs replead by way of reference all the preceding

allegations and by way of first cause of action state that:

12. The acts of defendant constitute breach of the

Memorandum of Agreement, in particular Articles XIII and XIV of
the said Memorandum of Agreement, to wit:
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XIII.
That no partner shall engage in, or invest or deal in
the securities of any business that in any way competes
with that of this firm, nor shall he give any time or
attention to any outside business, except with the
written consent of his co-partners.

XIV.
That the manager shall have the obligation to render an honest
accounting and liquidation of necessary expenses incurred in the
running of the partnership business;

That the commission of fraud by the manager in the

management or in the bookkeeping of the business shall be
sufficient cause for the expulsion from the partnership
without prejudice to the exercise of any and all remedies in
this case made and as provided for by law. (Emphasis Ours)

13. Defendant’s acts of opening a competing business without

the knowledge and consent of plaintiffs, and defendant’s failure to

formally turnover the records of the business or render an honest
accounting and liquidation of the assets and liabilities of the joint
venture, clearly violate the Memorandum of Agreement, in particular
the above-quoted provisions;

14. For said breach of the validly executed agreement, plaintiffs

demand from defendant specific performance of the stipulations

therein and to honor the existing agreement;

15. Defendant should be made accountable for the capital

contributions of the plaintiffs in the amount of PHP 100,000 each,

plus the income or profits accruing;
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SECOND CAUSE OF ACTION:

DAMAGES AND ATTORNEY’S FEES

16. The business of defendant was opened recently for the

purpose of directly competing with parties’ existing business. Since

defendant has not yet relinquished his position as manager and as
partner, defendant is acting in conflict of interest to the parties’ joint
venture, to the prejudice of the plaintiffs;

17. After the opening of defendant’s business, the existing

business of the parties lost some of its accounts and clients to

defendant’s newly opened furniture store. Defendant failed to render
a turnover, accounting and liquidation of the income, profits, assets
and liabilities of the parties’ business;

18. Consequently, plaintiffs were compelled to shell out

additional money as revolving fund to continue running the
partnership’s business. Plaintiffs had to hire another manager to
operate the business, the loss of plaintiffs and the business is due to
defendant’s acts or omission amounting to at least One Hundred
Thousand Pesos (PHP 100,000);

19. In order to vindicate the rights of plaintiffs violated by

defendant and for breach of contract, plaintiff is entitled to Nominal

Damages in the amount of Fifty Thousand Pesos (PHP 50,000);

20. The afore-described malfeasances of defendant are cogently

not worth emulating by society. Plaintiffs are entitled to Exemplary

Damages in the amount of at least Fifty Thousand Pesos (PHP
50,000);
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21. Likewise, defendant’s acts have caused plaintiffs’ business

loss of goodwill in the community, entitling plaintiffs Fifty Thousand

Pesos (PHP 50, 000) for Moral Damages;

22. To redress legitimate grievances and protect plaintiffs’ rights

and interests against defendant, plaintiffs were compelled to engage

the services of counsel. Plaintiffs are expected to incur litigation
expenses. Defendant should be ordered to pay plaintiffs attorney’s fees
in the amount of Fifty Thousand Pesos (PHP 50,000), plus litigation
expenses and cost of the suit;

ALLEGATIONS SUPPORTING THE PROPRIETY OF THE

ISSUANCE OF A TEMPORARY RESTRAINING ORDER (TRO)
AND/OR WRIT OF PRELIMINARY INJUNCTION

Plaintiffs replead all the foregoing averments and pose the

following points in support for the issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction against
defendant, to wit:

23. Plaintiffs are entitled to the relief demanded in this

Complaint, and the whole or part of such reliefs consist in restraining
perpetually defendant from continuing with his illegal activities of
operating a competing business to that of the existing business of the
partnership or joint venture pursuant to the Memorandum of
Agreement;

24. The continuation of the aforesaid activities or competing

business of defendant during the litigation would work injustice to

the plaintiffs;
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25. Unless a Temporary Restraining Order (TRO) be granted,

great and irreparable injury would result to plaintiffs before the

matter can be heard on notice;

26. Apart from the ongoing loss of income or loss of valued

clients of Haliwood Marketing Services to defendant’s competing

business, defendant is presumed to be continuously misappropriating
for his own benefit or for the competing business he has set up, the
capital share contribution of plaintiffs, the accruing profits, as well as
the income of the partnership;

27. Unless defendant’s operation is halted and defendant is

compelled to render an honest accounting and liquidation of the joint

venture’s assets and liabilities, income and profits, plaintiffs would
have to endure the economic damage and prejudice defendant is
causing them by defendant’s illegal and competing business;

28. After due notice and hearing, plaintiffs entreat this

Honorable Court to issue a Writ of Preliminary Mandatory Injunction;

29. Plaintiffs are ready and willing to file a bond executed to the

defendant, in an amount to be fixed by the Honorable Court, to the

effect that the plaintiffs will pay to such defendant all damages which
he may sustain by reason of the injunction if this Honorable Court
should finally decide that the plaintiffs were not entitled thereto.
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PRAYER
IN THE INTEREST OF JUSTICE, plaintiffs most respectfully
pray that a Temporary Restraining Order (TRO) be immediately
issued by this Honorable Court prohibiting defendant from continuing
the operation of his competing business with the existing business of
the partnership.
After due notice and hearing, a writ of Preliminary Mandatory
Injunction be issued affirming the TRO;

After the trial on the merits, judgment be rendered as

follows:
a. Making the TRO and/or Preliminary Mandatory Injunction
permanent;
b. Ordering the defendant to render an honest accounting
and liquidation of the assets, liabilities and necessary expenses
of the partnership or joint venture;
c. Holding the defendant accountable to the capital
contribution of the plaintiffs in the amount of PHP 100,000 each,
or a total of PHP 300,000, plus the income and profits accruing;
d. Ordering defendant to pay to plaintiffs Actual and
Compensatory Damages in the amount of at least One Hundred
Thousand Pesos (PHP 100,000);
e. Ordering the defendant liable for Nominal Damages as a
consequence of his breach of the Memorandum of Agreement in
the amount of Fifty Thousand Pesos (PHP 50,000);
f. Ordering the defendant to pay plaintiffs Exemplary
Damages in the amount of at least Fifty Thousand Pesos (PHP
50,000);
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g. Ordering defendant liable to plaintiffs for Moral Damages

in the amount of Fifty Thousand Pesos (PHP 50,000); and

h. Ordering the defendant to pay plaintiffs attorney’s fees in

the amount of Fifty Thousand Pesos (PHP 50,000), plus litigation
expenses and cost of the suit.

Plaintiffs likewise pray for other relief just and equitable under
the circumstances of this case.

RESPECTFULLY SUBMITTED, this 30 April 2018, at

Bansalan, Davao del Sur, Philippines.
EMBODO LAW OFFICE
Counsel for the Plaintiff
143 Ramon Revilla Street
Bansalan, Davao del Sur
Office Contact Nos. +63-922-788-9087 (SUN);
+63-908-555-6666 (SMART);
+63-917-234-1234 (GLOBE/TM)
Email Address: [email protected]

By:
DOMINIC E. EMBODO,MBA
PTR No. 4569519; 01/02/2015
IBP No. 924910; 12/16/2015 (for 2016)
Davao del Sur Chapter
Roll of Attorneys No. 34567
TIN 2378-000-980
MCLE Compliance No. IV-0000367
Issued on 04 November 2015

VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING

I, JANI DEP is of legal age, Filipino, married, GENGENLINA

J. DEP and a resident of Alta Vusta, Bansalan, Davao del Sur; and

Plaintiff RYAN REENOLDS is of legal age, Filipino, married to

NICOLE K. REENOLDS, and a resident of Mamatay, Bansalan,
Davao del Sur; after having been duly sworn to in accordance with
law, do hereby depose and say:
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1. That I am the Plaintiff in this case;

2. That I have caused the preparation of the above complaint;

3. That I have read and understood all the contents thereof;

4. That the same are true and correct to the best of my personal
knowledge and based on authentic records;

5. That I have not commenced or filed any action or proceeding

involving the same issues as in this case at bench in any branches of
this Court, or any other courts and other tribunal or agency
whatsoever and to the best of my knowledge, no such action or
proceeding is instituted nor have been pending in the Supreme Court,
Court of Appeals or other different divisions thereof, or any other
tribunal or agency thereof;

6. That if I would thereafter learned that similar action or proceeding

has been pending before the Supreme Court or any other courts or
tribunal thereof, then I will inform this court within five days from the
knowledge of the same.

In witness hereof, I have hereunto set my hands this April 30,

2018 at Bansalan, Davao del Sur, Philippines.

JANI DEP RYAN REENOLDS

Affiant Affiant
SSS No. 57400183687 SSS No. 89000183698

SUBSCRIBED AND SWORN TO before me this 30th of April

2018, at Bansalan, Davao del Sur, Philippines, affiant exhibiting to
me her valid identification No. as above indicated.

DOMINIC E. EMBODO,MBA
PTR No. 4569519; 01/02/2015
IBP No. 924910; 12/16/2015 (for 2016)
Davao del Sur Chapter
Roll of Attorneys No. 34567
TIN 2378-000-980
MCLE Compliance No. IV-0000367
Issued on 04 November 2015