Judicial-affidavit-of-expert-witness.docx
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Republic of the Philippines SUPREME COURT Eighth (8th) Judicial Region Regional Trial Court, Branch 7 Bulwagan ng Katarungan, Tacloban City
BALTHAZAR SEMBLAT, Plaintiff,
-versus-
CIVIL CASE NO.:________ FOR: ENFORCEMENT OF FOREIGN JUDGMENT PURSUANT TO RULE 39 OF THE RULES OF COURT
ANTONIO PRIMO ARELLANO, Defendant. X-----------------------------------------------X
JUDICIAL AFFIDAVIT OF WITNESS BARBARA MILLER PREFATORY STATEMENT This is the judicial affidavit of witness, Barbara Miller. The statements were taken and recorded based on the examination made by Atty. Valerie Monsod, Notary Public for Leyte, including the cities of Tacloban and Ormoc, at her office address at 123 Real St., Tacloban City on February 20, 2019. The affiant answered under oath in the English language and had sworn that she understood her statements made here and stands for their veracity. She was made aware that she made these statements under oath and fully conscious that she may face criminal liability for false testimony or perjury. PURPOSE(S) OF THE AFFIDAVIT This judicial affidavit form is offered in lieu of the witness’ testimony pursuant to Administrative Matter No. 12-8-8-SC, for the following purpose(s): PAGE \* MERGEFORMAT 7
1. To testify on the Standard Jury Instructions in Contract and Business Cases of the State of Florida relative to the provisions on breach of contract; 2. To prove that she possesses the required special knowledge, skill, experience or training to qualify as an Expert Witness; and 3. To prove all other matters relevant to the instant case. The following questions and answers were asked and recorded: Q1:
Please state your name, age, civil status, occupation and present address. ANSWER1: I am Barbara Miller, 40 years old, single, Business Lawyer of the State of Florida with an office address at 1745 Clearwater, #2000, Miami, Florida. Q2: What brought you to this office? ANSWER2: I am going to make my affidavit. Q3: In which language do you prefer your affidavit to be made? ANSWER 3: In English. Q4: What is the purpose of the affidavit? ANSWER4: To serve as my testimony in a case for Enforcement of a Foreign Judgment pending at the Regional Trial Court- Branch 7, Tacloban City. Q5: Are you aware that you are only to tell the truth and nothing but the truth and any false testimony you make will make you criminally liable? ANSWER5: Yes. Q6: Can you please describe your educational background? ANSWER6: I graduated at University of Florida School of Law with a Bachelor’s degree in Law in the year 2005. I passed the Florida State Bar Exam in the same year. A year after, I was admitted to practice law at United States District Court Central District of Florida. Q7: How long have you been in the practice of law? ANSWER7: I am already 14 years in the practice of law and in fact, up to this time, I am still actively engaged in the practice of law. Q8: Have you testified previously in court in matters relating to the provisions on breach of contract under the Standard Jury Instructions of the State of Florida? ANSWER8: Yes, I have. PAGE \* MERGEFORMAT 7
Q9: How many times did you testify in court in matters relating to the provisions on breach of contract under the Standard Jury Instructions of the State of Florida? ANSWER9: I appeared several times already. Unfortunately, I can no longer specify the number of times I appeared in court. Q10: Can you please describe the context of breach of contract in relation to Florida Standard Jury Instructions? How does it arise in this case? ANSWER10: Section 416.4 of the Florida Standard Jury Instructions in Contract and Business Cases provides for the essential elements of breach of contract. It is essential that the following elements must be proven in order for a breach of contract to set in: 1.
Claimant and Defendant entered into a contract;
2. Claimant did all, or substantially all, of the essential things which the contract required him to do or that he was excused from doing those things; 3. Defendant failed to do something essential which the contract required him to do or he did something which the contract prohibited him from doing and that prohibition was essential to the contract; and 4.
Claimant was harmed by that failure.
Q11: How can one recover damages from such breach? ANSWER11: To recover damages from Antonio Primo Arellano, for breach of contract, the plaintiff, Balthazar Semblat must prove the following: 1. That Balthazar Semblat and Antonio Primo Arellano entered into a contract; 2. That herein plaintiff did all, or substantially all, of the essential things which the contract required him to do; 3. That the defendant failed to pay the plaintiff, the remaining 36,000 USD upon the completion of the performance as agreed by both parties by virtue of the Service Agreement; and 4.
That Balthazar Semblat was harmed by that failure.
PAGE \* MERGEFORMAT 7
Q12: Do you agree to attach a copy of this Florida Standard Jury Instructions in Contract and Business Cases to your Judicial Affidavit and identify it later on in court? ANSWER12: Yes. COUNSEL’S MANIFESTATION: A copy of the Florida Standard Jury Instructions in Contract and Business Cases has been attached to this Judicial Affidavit. The said copy is a faithful reproduction of the certified copy of the original attached to the records as EXHIBIT H and Series. Q13: How do we know that the said Sec. 416.4 of the Florida Standard Jury Instructions reflects accurately the cause of action of the foregoing breach of contract case? ANSWER13: It is apparent in the facts of this case that there was indeed a breach of contract on the part of herein defendant. The source of the defendant’s obligation, the Service Agreement, had clearly stipulated the terms of the payment for the architectural services to be rendered by the plaintiff of this case in favor of the defendant. A perusal of the said document and of the facts surrounding this case had in fact proved that the defendant had committed a breach of contract. The Plaintiff had likewise been able to establish that he performed her obligation to the defendant and that he sent a demand letter to the defendant to demand for the payment for the services he has rendered. Q14: I no longer have any question. Do still have anything else to say? ANSWER14: None at the moment, ma’am. Q15: Do you swear to have told nothing but the truth and stand for the veracity of your answers to the questions asked to you? ANSWER15: Yes, ma’am.
x----------END OF INQUIRY----------x
PAGE \* MERGEFORMAT 7
PAGE \* MERGEFORMAT 7
Republic of the Philippines Tacloban City
) ) S.S.
AFFIANT’S OATH AND ATTESTATION I, BARBARA MILLER, 40 years old, single, Business Lawyer of the State of Florida with an office address at 1745 Clearwater, #2000, Miami, Florida, and with competence to comprehend without any vice of consent, hereby attest to have voluntarily and truthfully made the answers to the foregoing questions. IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day of February 2019, in Tacloban City, Philippines.
BARBARA MILLER Affiant
SUBSCRIBED AND SWORN to before me, this 20th day of February 2019, in Tacloban City, Philippines, affiant exhibiting the above document before me, and having sworn that she understood the contents and the allegations contained therein and that the same is her free and voluntary act and deed. Witness my hand and seal.
ATTY. MAUI R. VELEZ Commission No. 36384, until December 31, 2019 Roll No. 52818/ May 19, 2009 PTR No. 9287283/ 1-05-19 Palo, Leyte IBP O.R. No. 1290389/ 1-05-19, Leyte Chapter MCLE Compliance No. V-0005544, 11-14-2016
Doc. No. 14; Page No. 3; Book No. II; Series of 2019.
PAGE \* MERGEFORMAT 7
EXAMINING LAWYER’S SWORN ATTESTATION I, Atty. Valerie Monsod, Filipino, of legal age, single, a member in good standing of the Integrated Bar of the Philippines, Leyte Chapter and with office address at 123 Real St., Tacloban City, hereby depose under oath that: 1. I have faithfully recorded or cause to be recorded in my laptop computer the questions I have asked to the above witness and the corresponding answer that the witness gave; and 2. I have not nor any person present assisted or coached the witness regarding the latter’s answers. IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day of February 2019, in the City of Tacloban, Philippines. ATTY. VALERIE MONSOD Affiant SUBSCRIBED AND SWORN to before me this day, 20th day of February 2019, in the City of Tacloban, Philippines, affiant being personally known to me.
ATTY. MAUI R. VELEZ Commission No. 36384, until December 31, 2019 Roll No. 52818/ May 19, 2009 PTR No. 9287283/ 1-05-19 Palo, Leyte IBP O.R. No. 1290389/ 1-05-19, Leyte Chapter MCLE Compliance No. V-0005544, 11-14-2016
Doc. No. 15; Page No. 4; Book No. II; Series of 2019.
PAGE \* MERGEFORMAT 7
PAGE \* MERGEFORMAT 7
BALTHAZAR SEMBLAT, Plaintiff,
-versus-
CIVIL CASE NO.:________ FOR: ENFORCEMENT OF FOREIGN JUDGMENT PURSUANT TO RULE 39 OF THE RULES OF COURT
ANTONIO PRIMO ARELLANO, Defendant. X-----------------------------------------------X
JUDICIAL AFFIDAVIT OF WITNESS BARBARA MILLER PREFATORY STATEMENT This is the judicial affidavit of witness, Barbara Miller. The statements were taken and recorded based on the examination made by Atty. Valerie Monsod, Notary Public for Leyte, including the cities of Tacloban and Ormoc, at her office address at 123 Real St., Tacloban City on February 20, 2019. The affiant answered under oath in the English language and had sworn that she understood her statements made here and stands for their veracity. She was made aware that she made these statements under oath and fully conscious that she may face criminal liability for false testimony or perjury. PURPOSE(S) OF THE AFFIDAVIT This judicial affidavit form is offered in lieu of the witness’ testimony pursuant to Administrative Matter No. 12-8-8-SC, for the following purpose(s): PAGE \* MERGEFORMAT 7
1. To testify on the Standard Jury Instructions in Contract and Business Cases of the State of Florida relative to the provisions on breach of contract; 2. To prove that she possesses the required special knowledge, skill, experience or training to qualify as an Expert Witness; and 3. To prove all other matters relevant to the instant case. The following questions and answers were asked and recorded: Q1:
Please state your name, age, civil status, occupation and present address. ANSWER1: I am Barbara Miller, 40 years old, single, Business Lawyer of the State of Florida with an office address at 1745 Clearwater, #2000, Miami, Florida. Q2: What brought you to this office? ANSWER2: I am going to make my affidavit. Q3: In which language do you prefer your affidavit to be made? ANSWER 3: In English. Q4: What is the purpose of the affidavit? ANSWER4: To serve as my testimony in a case for Enforcement of a Foreign Judgment pending at the Regional Trial Court- Branch 7, Tacloban City. Q5: Are you aware that you are only to tell the truth and nothing but the truth and any false testimony you make will make you criminally liable? ANSWER5: Yes. Q6: Can you please describe your educational background? ANSWER6: I graduated at University of Florida School of Law with a Bachelor’s degree in Law in the year 2005. I passed the Florida State Bar Exam in the same year. A year after, I was admitted to practice law at United States District Court Central District of Florida. Q7: How long have you been in the practice of law? ANSWER7: I am already 14 years in the practice of law and in fact, up to this time, I am still actively engaged in the practice of law. Q8: Have you testified previously in court in matters relating to the provisions on breach of contract under the Standard Jury Instructions of the State of Florida? ANSWER8: Yes, I have. PAGE \* MERGEFORMAT 7
Q9: How many times did you testify in court in matters relating to the provisions on breach of contract under the Standard Jury Instructions of the State of Florida? ANSWER9: I appeared several times already. Unfortunately, I can no longer specify the number of times I appeared in court. Q10: Can you please describe the context of breach of contract in relation to Florida Standard Jury Instructions? How does it arise in this case? ANSWER10: Section 416.4 of the Florida Standard Jury Instructions in Contract and Business Cases provides for the essential elements of breach of contract. It is essential that the following elements must be proven in order for a breach of contract to set in: 1.
Claimant and Defendant entered into a contract;
2. Claimant did all, or substantially all, of the essential things which the contract required him to do or that he was excused from doing those things; 3. Defendant failed to do something essential which the contract required him to do or he did something which the contract prohibited him from doing and that prohibition was essential to the contract; and 4.
Claimant was harmed by that failure.
Q11: How can one recover damages from such breach? ANSWER11: To recover damages from Antonio Primo Arellano, for breach of contract, the plaintiff, Balthazar Semblat must prove the following: 1. That Balthazar Semblat and Antonio Primo Arellano entered into a contract; 2. That herein plaintiff did all, or substantially all, of the essential things which the contract required him to do; 3. That the defendant failed to pay the plaintiff, the remaining 36,000 USD upon the completion of the performance as agreed by both parties by virtue of the Service Agreement; and 4.
That Balthazar Semblat was harmed by that failure.
PAGE \* MERGEFORMAT 7
Q12: Do you agree to attach a copy of this Florida Standard Jury Instructions in Contract and Business Cases to your Judicial Affidavit and identify it later on in court? ANSWER12: Yes. COUNSEL’S MANIFESTATION: A copy of the Florida Standard Jury Instructions in Contract and Business Cases has been attached to this Judicial Affidavit. The said copy is a faithful reproduction of the certified copy of the original attached to the records as EXHIBIT H and Series. Q13: How do we know that the said Sec. 416.4 of the Florida Standard Jury Instructions reflects accurately the cause of action of the foregoing breach of contract case? ANSWER13: It is apparent in the facts of this case that there was indeed a breach of contract on the part of herein defendant. The source of the defendant’s obligation, the Service Agreement, had clearly stipulated the terms of the payment for the architectural services to be rendered by the plaintiff of this case in favor of the defendant. A perusal of the said document and of the facts surrounding this case had in fact proved that the defendant had committed a breach of contract. The Plaintiff had likewise been able to establish that he performed her obligation to the defendant and that he sent a demand letter to the defendant to demand for the payment for the services he has rendered. Q14: I no longer have any question. Do still have anything else to say? ANSWER14: None at the moment, ma’am. Q15: Do you swear to have told nothing but the truth and stand for the veracity of your answers to the questions asked to you? ANSWER15: Yes, ma’am.
x----------END OF INQUIRY----------x
PAGE \* MERGEFORMAT 7
PAGE \* MERGEFORMAT 7
Republic of the Philippines Tacloban City
) ) S.S.
AFFIANT’S OATH AND ATTESTATION I, BARBARA MILLER, 40 years old, single, Business Lawyer of the State of Florida with an office address at 1745 Clearwater, #2000, Miami, Florida, and with competence to comprehend without any vice of consent, hereby attest to have voluntarily and truthfully made the answers to the foregoing questions. IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day of February 2019, in Tacloban City, Philippines.
BARBARA MILLER Affiant
SUBSCRIBED AND SWORN to before me, this 20th day of February 2019, in Tacloban City, Philippines, affiant exhibiting the above document before me, and having sworn that she understood the contents and the allegations contained therein and that the same is her free and voluntary act and deed. Witness my hand and seal.
ATTY. MAUI R. VELEZ Commission No. 36384, until December 31, 2019 Roll No. 52818/ May 19, 2009 PTR No. 9287283/ 1-05-19 Palo, Leyte IBP O.R. No. 1290389/ 1-05-19, Leyte Chapter MCLE Compliance No. V-0005544, 11-14-2016
Doc. No. 14; Page No. 3; Book No. II; Series of 2019.
PAGE \* MERGEFORMAT 7
EXAMINING LAWYER’S SWORN ATTESTATION I, Atty. Valerie Monsod, Filipino, of legal age, single, a member in good standing of the Integrated Bar of the Philippines, Leyte Chapter and with office address at 123 Real St., Tacloban City, hereby depose under oath that: 1. I have faithfully recorded or cause to be recorded in my laptop computer the questions I have asked to the above witness and the corresponding answer that the witness gave; and 2. I have not nor any person present assisted or coached the witness regarding the latter’s answers. IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day of February 2019, in the City of Tacloban, Philippines. ATTY. VALERIE MONSOD Affiant SUBSCRIBED AND SWORN to before me this day, 20th day of February 2019, in the City of Tacloban, Philippines, affiant being personally known to me.
ATTY. MAUI R. VELEZ Commission No. 36384, until December 31, 2019 Roll No. 52818/ May 19, 2009 PTR No. 9287283/ 1-05-19 Palo, Leyte IBP O.R. No. 1290389/ 1-05-19, Leyte Chapter MCLE Compliance No. V-0005544, 11-14-2016
Doc. No. 15; Page No. 4; Book No. II; Series of 2019.
PAGE \* MERGEFORMAT 7
PAGE \* MERGEFORMAT 7
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