Republic of the Philippines
REGIONAL TRIAL COURT
7th Judicial Region
Branch 65
City of Talisay, Cebu
MARIA ROWENA A. CIVIL CASE NO.
BLANCO TCV-2019-621
Plaintiff,
-versus-
FOR: DAMAGES &
LESLIE WALLER, ATTORNEY’S FEES
Defendant.
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ANSWER
WITH AFFIRMATIVE DEFENSES AND
PERMISSIVE COUNTERCLAIM
The Defendant, LESLIE WALLER, through the undersigned
counsel, unto this Honorable Court most respectfully states:
Prefatory Statement
“The general rule is that everyone is bound to bear the habitual or
customary inconveniences that result from the proximity of others, and so
long as this level is not surpassed, he may not complain against them. But if
the prejudice exceeds the inconveniences that such proximity habitually
brings, the neighbor who causes such disturbance is held responsible for the
resulting damage, being guilty of causing nuisance.”
“Our law of nuisances is of American origin, and a review of
authorities clearly indicates the rule to be that the causing or maintenance of
disturbing noise or sound may constitute an actionable nuisance.1”
“The nuisance doctrine operates as a restriction upon the right of the
owner of property to make such use of it as he pleases. In legal phraseology,
the term “nuisance” is applied to that class of wrongs which arises from the
unreasonable, unwarrantable or unlawful use by a person of his own
property, and which produces such material annoyance, inconvenience,
1
V. Ed. Note, 23 ALR, 2d 1289
discomfort, or hurt, that the law will presume a consequent damage.
Anything that works an injury, harm or prejudice to an individual or the
public is a nuisance. It embraces both intentional harms and those caused by
negligence or recklessness.2”
“Anything which is injurious to public health or safety, is offensive to
the senses, is indecent or immoral, obstructs the free use of any public street
or body of water, impairs the use of property, or in any way, interferes with
the comfortable enjoyment of life or property is a nuisance.”
The Statement of Facts
1. Answering defendant admits the allegation in Paragraphs 1, 2, and
3 on the matters:
(a) That the plaintiff, Maria Rowena A. Blanco, is a Filipino,
single, of legal age, and a resident pf Lot 15, Block 5, Azienda Milan,
Maghaway, Talisay City, 6045 Cebu.
(b) That the defendant, Leslie Waller, is Filipino, married, and a
resident of Azienda Milan, Maghaway, Talisay City, 6045 Cebu.
(c) That the plaintiff, Maria Rowena Blanco is a resident of and
homeowner in Azienda Milan, Maghaway, Talisay City, 6045 Cebu.
She is the absolute and registered owner of a house and lot located at
Lot 15, Block 5, Azienda Milan;
2. For lack of knowledge to form sufficient basis on the
truthfulness or falsity thereof on the part of the answering defendant
anent the entrustment of plaintiff’s properties, including her dogs, to
her kasambahay, the allegation in Paragraph 4 of the Complaint, which
involve factual matters, is denied;
3. Defendant specifically and vehemently denies the hearsay
allegations and assertions in Paragraphs 5 and 6 that the kasambahay
Cherry Jean R. Largo informed the Plaintiff that on February 16, 2019,
more or less, at past midnight, Defendant had gone to her residence
and got mad for the barking of her dogs and that the kasambahay
Cherry Jean R. Largo narrated that on the same date and time she
and her fellow kasambahay, Tessie Pantilgab, had been awakened by
defendant, who was mad because of the dog’s barking and who was
shouted and was scolded them as the dogs allegedly caused
disturbance in the neighborhood;
2
58 Am. Jur. 2d 553-554
4. Defendant likewise denies vehemently the self-serving and
hearsay allegations in Paragraph 7 that the kasambahay Cherry Jean
Largo explained to the Plaintiff that the dogs were barking precisely
because they were alerted by the presence of the defendant and the
security guard;
5. For lack of knowledge to form sufficient basis on the
truthfulness or falsity thereof on the part of the answering defendant
anent the negotiation made between the plaintiff and the Architect
Aldwin M. Pandaan for the improvement of the fence which the
former P100,000.00 to the later in the amount of P100,000.00, and the
arrival of four (4) construction workers at plaintiff’s residence, the
allegations in Paragraphs 8 and 9 of the Complaint, which involve
factual matters, are denied;
6. Defendant denies specifically the hearsay and self-serving
allegations in Paragraph 10 that on February 22, 2019, defendant
shouted at the construction workers and told them to stop the
construction because allegedly they had no permit and the fence was
too high;
7. Defendant has no knowledge or information to form a belief
as to the truth of the averment on Paragraphs 11 and 12 that the
plaintiff and defendant talked through an ipad and the defendant
shouted at plaintiff to stop the construction of their fence;
8. Defendant also specifically and vehemently denies the self-
serving allegations and assertions in Paragraphs 13, 14 and 15 that
defendant berated the plaintiff’s workers and demanded that all
construction works be stopped, that defendant warned that if the
construction workers would not stop, she would ask the guards to
drag them outside the subdivision and cases would be filed against
them, that the construction workers stopped working and went home
out of fear, and that the plaintiff’s kasambahay asked permission from
the plaintiff to go home out of fear;
9. Defendant has no knowledge or information to form a belief
as to the truth of the averment on Paragraph 16 of the Complaint that
a new kasambahay arrived;
10. Defendant has no knowledge or information to form a belief
as to the truth of the averment on Paragraph 14 that the construction
workers stopped working and went home out of fear;
The Special and Affirmative Defenses
By way of special and affirmative defenses, defendant avers:
11. There has been a number of complaints regarding the
excessive and incessant barking of Blanco’s dogs. As a matter of fact,
certain Azienda Milan Homeowner Julius Estoy of Block 5, Lot 31
brought and raised this kind of nuisance or public disturbance. A
machine copy of the concern of Julius Estoy is hereto attached and
made integral part hereof as ANNEX 1.
12. The plaintiff, through kasambahay, Cherry Jean Largo was
communicated by the defendant regarding the excessive barking of
dogs. A machine copy of the communication to the kasambahay is
hereto attached and made integral part hereof as ANNEX 2.
13. Aside of that communication, a letter dated 16 February
2019 was sent to the plaintiff, through kasambahay for discussion and
resolution regarding the excessive dog barking as public nuisance. A
machine copy of another communication is hereto attached and made
integral part hereof as ANNEX 3.
14. Considering the fact that defendant, in the very first place, is
required to bring the matter to the Office of the Barangay owing to
the same residences between the parties and for failure of the plaintiff
or kasambahay to appear before the Azienda CMV HOA, the
defendant went before the Office of the Barangay Captain of
Barangay Maghaway, Talisay City to file a complaint and to summon
the plaintiff and its kasambahay or caretaker for further mediation or
conciliation. A machine copy of the summons is hereto attached and
made integral part hereof as ANNEX 4.
15. The defendant also found out that there were many dogs
inside the house of the plaintiff. The plaintiff has five small dogs in a
cage, one big dog in a cage and other two dogs inside her house. A
machine copy of the photograph is hereto attached and made integral
part hereof as ANNEX 5.
16. The Azienda CMV HOA, Inc. Rules and Regulations
provides that:
8) Pets
xxx xxx xxx
f) Noise and excessive barking
Owners must ensure that their pets do not disturb nearby
neighbors with excessive barking. No pets should make
noise audible between houses/units between the hours of
9:00 P.M. and 7:00 A.M.
No animal shall be allowed to annoy residents
unreasonably, to endanger the life or health of other
animals or persons, or to substantially interfere with the
quite enjoyment of others.
What is considered a nuisance from barking:
Constinually barking, yelping or whining for more
than 5 minutes in any one-hour period.
Barking that is persistent and occurs for an
extended period of time or on a repeated basis
expecially between the hours of 9 P.M. and 7 A.M.
xxx xxx xxx
h) Population
Each house or residence is allowed no more than three (3)
adult dogs or cats. This could be a combination of both
but not to exceed three (3) in total. For the purpose of
these rules, a dog that is more than six (6) months old
shall be considered an adult.
A machine copy of the Azienda CMV HOA, Inc. Rules and
Regulations is hereto attached and made integral part hereof as
ANNEX 6.
17. Instead to reach a settlement for the excessive dog barking,
the plaintiff constructed fence. A machine copy of the photograph is
hereto attached and made integral part hereof as ANNEX 7.
18. The Deed of Restrictions provides that:
Section XII Walls and Fences
The Owner of the unit may be allowed to construct
perimeter fence within his property provided that such
fence shall be made of strong materials duly approved by
the DEVELOPER and the government agency concerned.
The perimeter fence shall have a maximum combined
height of 1.5 meters enclosing the front easement and 2.0
meters placed in front. Fence on the rear boundaries of
lots along the subdivision perimeter or edges are allowed
to be constructed at a maximum combined height of 2.5
meters.
A machine copy of the Deed of Restrictions is hereto attached
and made integral part hereof as ANNEX 8.
19. The defendant confronted the plaintiff, through the
kasambahay or caretaker, of the limitations provided in the Deed of
Restrictions.
20. The plaintiff despite of the limitations and confrontations
continued the construction of the fence.
21. For annoyance, sleepless nights, mental anguish, moral
shock, social humiliation and adverse effects suffered, the plaintiff
should be made liable for the moral damages in the amount of 30,000.
22. As a result of the plaintiff’s stubborn refusal to comply with
the Azienda CMV HOA Rules and Regulation and the Deed of
Restrictions, the defendant was compelled to hire the services of the
undersigned to whom they have promised to pay the amount of
Thirty Thousand Pesos (P30,000.00) as and by way of Attorney’s Fees
and per court appearance fee in the amount of Three Thousand Pesos
(P3,000.00).
PRAYER
WHEREFORE, the Defendant pray that judgment be rendered
ordering:
1. The plaintiff to transfer its dogs or take appropriate measure to
seduce its noise at the Azienda Milan, Maghaway, Talisay
City.
2. The plaintiff to remove the improvement of the fence.
3. The plaintiff to pay defendant the amount of at least Thirty
Thousand Pesos (P30,000.00) for Attorney’s Fee.
All other reliefs just and equitable under the foregoing
premises are likewise prayed for.
August ___, 2019. Cebu City (for Talisay City), Philippines.
P.B. LABRADO AND PARTNERS LAW OFFICE
Counsel for the Defendant
Room 202, 2nd Floor, Aniceta Bldg.,
Osmeňa Blvd., Cebu City
Tel. No. (032) 405 3099
MARC CHRISTIAN H. TANGPUZ
Roll of Attorneys No. 72435
PTR No. 286140; Cebu Province, June 25, 2019
IBP No. 088386; Cebu Province, June 10, 2019
MCLE Exempt; Admitted to the bar June 14, 2019
Room 202, Aniceta Bldg. Osmena Blvd., Cebu City
Cell No. 0939 397 6604
marcchristiantangpuz@[Link]
Republic of the Philippines ) S.S.
City of Cebu )
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VERIFICATION AND CERTIFICATION
I, LESLIE WALLER, of legal age, Filipinos and resident of
Azienda Milan, Maghaway, Talisay City , Cebu under oath depose
and state that:
1. I am the defendant of the above-mentioned case against herein
plaintiff.
2. I have read the contents of the complaint and the same are true
and correct of my own personal knowledge and based on
authentic documents on hand.
3. Other than the instant case, I have not filed any similar action
against the same plaintiff with any other court or quasi-judicial
agency including any Municipal Trial Court, Regional Trial
Court, the Court of Appeals or even the Supreme Court or any
of their divisions.
4. I hereby undertake that if I hereafter learn of the filing or
pendency of such similar case against the same plaintiff, I shall
promptly inform this Honorable Court of such fact within five
(5) days therefrom.
IN WITNESS WHEREOF, we have hereunto set our hands this
___ day of August 2019 in the City of Cebu, Philippines.
LESLIE WALLER
Affiant
ID No.____________
SUBSCRIBED AND SWORN to before me the day, month,
year and place above-written, affiants having personally appeared
before me and they exhibited to me their valid identification cards
the particulars of which are above-written.
Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 2019.
