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IN THE COURT OF APPEALS

MANILA

STEPHEN E. TORING, represented )


By his attorney-in-fact, JOVENAL B.
)
TORING,
)
Plaintiff-Appellant,
)
)
- versus )
)
)
)
)
SAMUEL ROLANDO A. FALCON
)
Defendant-Appellee. )
____________________________________)

CA-G.R. CV-No. 83131,


Regional Trial Court
Muntinlupa City
)
Branch 256
Civil Case No. 00-025

APPELLANTS BRIEF

PLAINTIFF-APPELLANT ABOVE NAMED, by herein LAW FIRM,


avers:

This is an appeal from the decision dated May 13, 2003 of the
Regional Trial Court, Branch 256, Muntinlupa City, dispositive portion of
which reads as follows:
WHEREFORE, in view of the foregoing judgment is
hereby rendered in favor of the defendant and
against the plaintiff in the following:
1. Dismissing the instant complaint against the
defendant;
2. Ordering the plaintiff to pay the defendant
the amount of P235,000.00 representing the
down payment for the vehicle and P
24,743.00 representing the one (1) month
amortization for the same plus interest at
the legal rate until fully paid or, in the
alternative, ordering the plaintiff to give
back the vehicle to the defendant and
allowing the defendant to continue paying
the monthly amortizations.
SO ORDERED.

STATEMENT OF FACTS
___________
Plaintiff-appellant filed a complaint for Replevin/Damages against
defendant-appellee before the Regional Trial Court of Muntinlupa City,
Branch 256, docketed as Civil Case No. 00-025.
In his complaint plaintiff-appellant alleged that he is the
registered owner of a motor vehicle particularly described as follows:
Make

Hyundai Starex

Type

Van

Motor No.

D4BHX812338

Chassis No.

KMJWWH7HPXU185060

MV File No.

1312-187100

Year Model

1999

No. of cylinder

That sometime in November 1999, plaintiff-appellant as bailor,


loaned the said vehicle to defendant-appellee, as bailee, as the latter
would use the same for personal purpose only. Plaintiff-appellant
further claimed that defendant-appellee undertook and promised to
return the motor vehicle to plaintiff-appellant on January 7, 2000. That
said motor vehicle will be used solely for the purpose for which it was
borrowed and that during that period agreed upon defendant-appellee
will maintain and preserve the motor vehicle on the same condition
when it was loaned to him by the plaintiff-appellant.

Plaintiff-appellant further alleged that contrary to the agreement


between plaintiff-appellant as bailor and defendant-appellee as bailee,
the latter unjustifiably failed and refused to return the motor vehicle
2

and despite demand made by plaintiff-appellant, defendant-appellee


still failed and refused and continues to fail to return the subject
vehicle.

Defendant-appellee in his answer with compulsory counterclaim


denied the allegations against him and set up affirmative defense that
the transaction between the plaintiff-appellant and defendant-appellee
is not commodatum but a contract of sale with assumption of
mortgage.

After both parties have presented their witnesses and formally


offered their respective documentary exhibits, the Honorable Trial court
rendered its decision in favor of defendant-appellee. Certified true copy
of the said decision is hereto attached as Annex A.

Not satisfied with the aforesaid decision an appeal was filed by


plaintiff-appellant on June 16, 2003.

EVIDENCE FOR
PLAINTIFF-APPELLANT
______________________________

Plaintiff-appellant presented Mr. Jovenal Toring as his witness who


testified that the vehicle subject of the case at bench was loaned only
by the plaintiff-appellant, as bailor, to defendant-appellee,as bailee. He
likewise testified that the contract was gratuitous. However, on crossexamination he testified that there were checks received by him given
by defendant-appellee as earnest money.
3

Plaintiff-appellant likewise offered in evidence exhibits A to B


with submarkings.

EVIDENCE
FOR DEFENDANT-APPELLEE
_____________________________

Defendant-appellee himself was presented and testified that


the contract entered into between him plaintiff-appellant is a contract
of sale with assumption of mortgage. He further testified that
payments were made by him to Plaintiff-appellant which the latter
received.

Defendant-appelle likewise offered in evidence exhibits 1 to


3 with submarkings.

ASSIGNMENT OF ERROR
_____________________________

THE REGIONAL TRIAL COURT ERRED IN FINDING THAT


PLAINTIFF-APPELLANT
AND
DEFENDANT-APPELLEE
ENTERED INTO A CONTRACT OF SALE AND NOT A
CONTRACT OF COMMODATUM.

DISCUSSION
_____________
I

THE REGIONAL TRIAL COURT ERRED

IN FINDING THAT PLAINTIFF-APPELLANT


AND DEFENDANT-APPELLEE ENTERED
INTO A CONTRACT OF SALE AND NOT
A CONTRACT OF COMMODATUM.

The Regional Trial Court has gravely erred in finding that plaintiffappellant and defendant-appellee has entered into a contract of sale
and not a contract of commodatum. Such finding of the Honorable trial
court was arrived at notwithstanding the fact that there was no clear
and convincing evidence to prove the same.
Specially so that a copy of the said contract of sale was not
presented by defendant-appelle during the trial of the case at bench.
The Honorable Trial court based its finding on the fact that checks were
received by plaintiff-appellant from defendant-appellee.

In the case at bench it bears stressing however that defendantappellee has averred as his affirmative defense that there was contract
of sale with assumption of mortgage. Thus, it behooves upon
defendant-appellee to prove the same by clear and convincing
evidence.

Well-settled is the rule that he who alleges a fact has the burden
of proving it and a mere allegation is not evidence (Marubeni
Corporation vs. Lirag, 362 SCRA 620).

The fact that there were checks issued by defendant-appellee


and the same were accepted by Plaintiff-appellant did not clearly and
convincingly establish the fact that there was a contract of sale
between plaintiff-appellant and defendant-appellee specially so if the
5

copy of the said contract of sale cannot be produced/presented in court


by defendant-appellee who alleged the same. The mere fact therefore
that there were checks accepted by plaintiff-appellant was not so clear
and convincing to establish that there was contract of sale between
plaintiff-appellant and defendant-appellee which as testified by Mr.
Jovenal Toring the checks were accepted not as payments but only as
earnest money.

In order to clearly and convincingly establish such contract of


sale as alleged by defendant-appellee the latter should have
produced/presented a copy of the said contract before the court in the
course of the trial or the Honorable trial court has ordered the parties
to produce the said contract of sale which could be easily done if the
same really exists.

The question is why did defendant-appellee not able to


produce/present a copy of the said contract of sale if there was really
such agreement between him and plaintiff-appellant. The primary
reason for this is that there was really no contract of sale between
plaintiff-appellant and defendant-appellee because what was entered
between them was a mere contract of commodatum.

It is therefore grave error on the part of the Honorable Trial court


to conclude that there was indeed a contract of sale between plaintiffappellant and defendant-appellee without the same being proven by
clear and convincing evidence.

RELIEF
________
PRESCINDING THEREFROM, plaintiffs-appellants prayed unto this
Honorable Appellate Court that the decision dated May13, 2003 be
Reversed and Set Aside.

Other relief are likewise prayed for.

Muntinlupa City for the City of Manila, March 11, 2005.


THE LAW FIRM OF
ANTONIO A. NAVARRO III
& ASSOCIATES
Counsel for plaintiff-appellant
108 Dr. Alfredo Bunye Street,
Alabang, Muntinlupa City,
Metro Manila
By:

ANTONIO A. NAVARRO III


P.T.R. No. 6748814
1/3/05 Muntinlupa City
I.B.P. No. 591496
1/4/05 Pasay-ParanaqueLas Pinas-Muntinlupa Chapter

Copy furnished:
Atty. Maria Flora A. Falcon
Falcon Law offices
Counsel for defendant-appellee
Unit 1608 88 Corporate Center
Sedeno corner Valero Street,
Salcedo Village
Makati City
(by registered mail)
7

COMPLIANCE
(With Sections 2, 4, 5 and 7, Rule 13
of the 1997 Rules of Civil Procedure)
- and EXPLANATION
(Pursuant to Section 11, same Rule 13)
Undersigned counsel, hereby respectfully state that a copy of
this APPELLANTS BRIEF was served by registered mail to:
Atty. Maria Flora A. Falcon
Falcon Law offices
Counsel for defendant-appellee
Unit 1608 88 Corporate Center
Sedeno corner Valero Street,
Salcedo Village
Makati City
(by registered mail)
by depositing a copy thereof on March ____, 2005 in the post office of
_____________, as evidenced by Registry Receipt No. ________, hereto
attached and indicated after the name(s) of the addressees and with
instructions to the postmaster to return the mail to the sender after ten
(10) days if undelivered.
The mode of service by registered mail, instead of personal
service was resorted to for the following reasons:
1.
Heavy volume of deliveries/services/filing of equally
important pleadings/motions/notices by the messengers of herein law
firm in other Courts/tribunals and to adverse parties required to be
served/furnished with copy/ies thereof;
2.
Distance between the offices of herein law firm and that of
the opposing counsels not to mention the chaotic traffic condition that
impedes prompt personal service thereof.
ANTONIO A. NAVARRO III