REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region

REGIONAL TRIAL COURT
Quezon City, Branch 96

MARK ANGELO ORO,

Plaintiff,

-versus-
Civil Case No. R-QZN-19-09548-CV
FOR: Sum of Money and Damages

SHAWARMA SHACK KIOSK

CORPORATION and/or
SHAWARMA SHACK
FASTFOOD CORPORATION,
Defendant.
x- - - - - - - - - - - - - - - - - - - - - - - - x

MOTION TO DISMISS

DEFENDANT, by the Undersigned Counsel and unto this Honorable

Court, most respectfully moves to DISMISS this complaint and in support
thereof alleges as follows:

1. That on July 12, 2019, defendant received the summons with the
attached complaint for SUM OF MONEY of plaintiff Mark Angelo
Oro.
2. Under the rules, defendant has fifteen (15) days from receipt of the
same or until July 27, 2019 within which to file its answer or a motion
to dismiss. Considering that July 27, 2019 is a Saturday, the last day
of filing is on the following working day or on July 29, 2019.

3. Under Section 1, Rule 16 of the Rules of Court, a motion to dismiss

the complaint may be filed within the time for but before filing the
answer to the complaint, hence, this motion is timely filed.

4. Defendant humbly moves for the dismissal of this complaint on the

grounds that:
 a. That the court has no jurisdiction over the subject matter of
the claim1; and

b. The pleading asserting the claim states no cause of action2.

5. A perusal of the complaint readily reveals that plaintiff’s complaint is

for sum of money whereby he claims the following, to wit:

a. Plaintiff Oro’s claim of Php300,000.00 refund plus legal

interest;

b. Exemplary damages in the amount of Php100,000.00;

c. Moral damages in the amount of Php100,000.00; and

d. Attorney’s fees of P150,000.00 and the cost of suit.

6. Section 19, paragraph 8 and section 33, paragraph 1 of R.A. 7691,

amending BP Blg. 129, reads:

“Section 1. Section 19 of Batas Pambansa Blg. 129, otherwise known

as the "Judiciary Reorganization Act of 1980", is hereby amended to
read as follows:

"Sec. 19. Jurisdiction in civil cases. – Regional Trial Courts shall

exercise exclusive original jurisdiction.

xxx

(8) In all other cases in which the demand, exclusive of interest,

damages of whatever kind, attorney's fees, litigation expenses, and
costs or the value of the property in controversy exceeds One hundred
thousand pesos (P100,000.00) or, in such other cases in Metro Manila,
where the demand exclusive of the above-mentioned items exceeds
Two Hundred thousand pesos (P200,000.00)."

xxx

Section 3. Section 33 of the same law is hereby amended to read as

follows:

"Sec. 33. Jurisdiction of Metropolitan Trial Courts,

Municipal Trial Courts and Municipal Circuit Trial Courts in
Civil Cases. – Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts shall exercise:

"(1) Exclusive original jurisdiction over civil actions and

probate proceedings, testate and intestate, including the grant of

1 Rule 16 of the Rules of Court, Section 1(b)

2 Id, Section 1(g)
 provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or

amount of the demand does not exceed Two hundred

thousand pesos (P200,000.00), exclusive of interest, damages
of whatever kind, attorney's fees, litigation expenses, and
costs, the amount of which must be specifically alleged:
Provided, That interest, damages of whatever kind, attorney's
fees, litigation expenses, and costs shall be included in the
determination of the filing fees: Provided, further, That where
there are several claims or causes of actions between the same
or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all
the causes of action, irrespective of whether the causes of action
arose out of the same or different transactions;

xxx

Section 5. After five (5) years from the effectivity of this Act,
the jurisdictional amounts mentioned in Sec. 19(3), (4), and (8);
and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by
this Act, shall be adjusted to Two hundred thousand pesos
(P200,000.00). Five (5) years thereafter, such jurisdictional
amounts shall be adjusted further to Three hundred thousand
pesos (P300,000.00): Provided, however, That in the case of
Metro Manila, the abovementioned jurisdictional amounts
shall be adjusted after five (5) years from the effectivity of
this Act to Four hundred thousand pesos (P400,000.00).

7. Taking into consideration the above-cited law, R.A. 7691, amending

B.P. Blg. 129, defining the jurisdiction of the Regional Trail Court, it
is clear that this Honorable Court has no jurisdiction over this case
considering that the amount demanded by plaintiff is ONLY
PHP300,000.00, exclusive of interest, moral damages, exemplary
damages, attorney’s fee and cost of suit.

8. The amount of damages being claimed cannot be included in the

computation as they are merely incidental to the filing of the
complaint.

9. Hence, culled from the foregoing, it is the Metropolitan Trial Court

which has exclusive jurisdiction over this case for sum of money.

10.Moreover, the franchise agreement specifically provides a

stipulation on referral to arbitration which states that:
 “XXXI. ARBITRATION.

A. Any claim arising out of or relating to the agreement, or any

breach thereof, shall be submitted to binding arbitration with the
Philippine Dispute Resolution Center in accordance with the

rules then presently used by such institution. Nothing contained

herein shall, however, be construed to limit or to preclude either
party from bringing any action in any court of competent
jurisdiction for inhunctive or other provisional relief as it deems to
be necessary or appropriate to compel the other party to comply
with his obligations hereunder. Xxx”

A copy of the Franchise Agreement is herein attached as Annex

“1” and the pertinent portion quoted above was sub-marked as
Annex “1-B”.

11.Therefore, this court likewise have no jurisdiction over this case as the
same, upon the agreement of the parties, shall be referred to
arbitration and only injuctive reliefs can be brought directly to court.

12.Furthermore, a thorough reading of the allegations in this complaint

will likewise show that plaintiff fails to state a cause of action.

13.Plaintiff simply alleges that it entered into a Franchise agreement with

defendant on May 30, 2018. That immedaitely, thereafter plaintiff
had found out some disagreements and differences with defendant
he talked to defendant’s representative and demanded the refund of
the franchise fee in the amount of Php300,000.00. That the
defendant’s representative agreed to the cancellation of the subject
franchise agreement. That after series of demands by plaintiff,
defendant did not heed his demand for payment and that plaintiff’s
lawyer sent a demand letter to defendant which was answered by
defendant’s lawyer and was subsequently replied by plaintiff’s
lawyer.

14.Aside from the foregoing, no other facts were alleged in support of

plaintiff’s alleged right to refund the franchise fee.

15.Contrary to plaintiff’s claim, a cursory reading of the franchise

agreement readily shows that the Franchise Fee, as agreed upon by the
parties, is NOT REFUNDABLE.

16.Paragraph 1(c) of the agreement reads:

“APPOINTMENT AND FRANCHISE FEE

X X X
C. In consideration of the franchise granted herein,
FRANCHISEE shall pay to FRANCHISOR, a franchise fee of
 THREE HUNDRED THOUSAND PESOS (Php300,000.00),
exclusive of Value-Added Tax (VAT) and all other taxes
required to be withheld under applicable laws and regulations,
upon execution of this agreement. Said fee shall be deemed
fully earned and non-refundable as consideration to
FRANCHISOR for its expenses incurred in furnishing
assistance and services to FRANCHISEE and for
FRANCHISOR’S lost or deferred opportunity to enfranchise
others.” (Emphasis Supplied)

Pertinent portion above-quoted was sub-marked as Annex “1-

A”.

17.The reason alleged in the complaint as basis for their claim of refund
is unsubstantiated by evidence and does not in any way changes the
terms and conditions of the agreement.
18.There was no allegation in the complaint as regards the alleged the
particular disagreements and differences. In fact, defendant was in a
quandary as to what these differences or disagreements are all about.

19.Likewise, the complaint failed to state the identity of this supposed

defendant’s representative who agreed to the cancellation of the
franchise agreement.
20.There was no stipulation in the agreement allowing a refund on a
supposed disagreements and differences between the parties, hence,
the basis for filing this complaint for refund is unfounded.

21.In addition, there was no allegation of fault or negligence attributed to

the defendant resulting to the non-operation of the franchise facility of
Shawarma Shack.
22.Hence, defendant through counsel, calls the attention of complainant
on the non-refundability clause of the franchise agreement and
likewise there being no cancellation of franchise, they were informed
of their remedy pursuant to the franchise agreement to proceed with
the operation of the Shawarma Shack store or cause the assignment or
transfer of their rights under the agreement to a third person.

23.By entering into a franchise agreement, plaintiff agreed to pay a

NON-refundable franchise fee which is apparently stated in paragraph
1(c) of the franchise agreement which was signed by plaintiff in each
and every page thereof thereby giving his imprimatur to all the terms
and conditions of said contract.

24.Article 1315 of the Civil Code reads:

“Article 1315. Contracts are perfected by mere consent, and
from that moment the parties are bound not only to the
fulfillment of what has been expressly stipulated but also to all
 the consequences which, according to their nature, may be in
keeping with good faith, usage and law.”

25.By signing the franchise agreement, he consented to pay a NON-

refundable franchise fee of Php300,000.00 which was never forced
upon him. Therefore, the complaint states no cause action.
26.In view of the foregoing, plainiff’s claim for moral and exemplary
damages and attorney’s fee should likewise be dismissed for being
baseless and unfounded. To reiterate, there was no bad faith on the
part of defendant. The truth is, it was plaintiff who is in utter
disregard of the franchise agreement by not operating the franchise
facility as mandated therein.

27.In view of the baseless and unfounded complaint of plaintiff,

defendant was constrained to secure the service of a legal counsel and
for which they spent Php150,000.00 as attorney’s fee.

PRAYER

WHEREFORE, Premises Considered, it is respectfully prayed of this

Honorable Court that the complaint for Indirect Contempt against herein
respondents be DISMISSED for lack of cause of action and plaintiff be
required to pay attorney’s fee.

Other reliefs just and equitable under the premises are likewise prayed
for.

July 29, 2019, Quezon City.

ROSARIO S. NICANOR
Counsel for the Defendant
Unit 307, DM Building, Visayas Avenue
cor. Congressional Avenue, Quezon City

Roll No. 49125

IBP No. 64056/ 01-07-19 / Q.C.
PTR No. 7376305 / 01-07-19 / Q.C.
MCLE No. VI - 0022916/3-29-19
Tel. No. 9869112/Cell. No. 09282235734
 Notice of Hearing

The Branch Clerk of Court

Regional Trial Court
Branch 96, Quezon City.

Sir/Madam:

Please set this Motion for the consideration and approval of this
Honorable Court on ___________________ at ______ in the
morning/afternoon.

ROSARIO S. NICANOR

EXPLANATION

Copy of the Motion to Dismiss was sent to plaintiff’s counsel via

registered mail / LBC due to lack of personnel and time constraints.

ROSARIO S. NICANOR

Copy furnished:

ATTY. NELSON A. CLEMENTE

No. 10 Nery Street corner Rosary Street
Remmanville Executive Village, Paranaque City.