JOSE CO LEE, DOING BUSINESS UNDER THE NAME AND STYLE OF JC LEE CONSTRUCTION, PLAINTIFF-APPELLEE, VS. M & H (SUBIC), INCORPORATED AND/OR ITS PRESIDENT MIN KYUNG HOON, DEFENDANTS-…
DIMAAMPAO, J.:
“IN VIEW THEREOF, judgment is rendered in favor of the plaintiff Jose Co Lee under the name JC Lee Construction and against the defendant Min Kyung Hoon, President of M & H (Subic) Inc. who is hereby directed to pay the plaintiff:
- Php1,276,698.35 representing 10% retention fees;
- Php450,308.50 for the Final Billing; and
- Php297,692.94 as payment for additional works;
- Php20,000.00 as attorney’s fees, the plaintiff having been constrained to go to Court to collect a just, valid and demandable claim;
- And costs of this suit.
The defendant’s counterclaim is DISMISSED.”[2]
The factual backdrop is uncomplicated.
Plaintiff-appellee Jose Co Lee (appellee), doing business under the name and style of JC Lee Construction (JC Lee), entered into a contract with appellant M & H, Incorporated (M & H) relative to the construction of a two-storey hotel building (Bayfront Hotel) for the original price of P21,700,000.00.[3] Subsequently, the actual project cost was reduced to P16,116,078.21.[4] The Contract Agreement Proforma was signed by Rolando Kua, owner of JC Lee, and defendant-appellant Min Kyung Hoon (Hoon), President of M & H. The hotel project was duly completed[5] but M & H and Hoon (collectively, appellants) refused to pay the balance of P2,364,522.64. Appellants turned a deaf ear to demands to pay the outs-tanding balance of the contract price. Ensuingly, appellee lodged a collection suit.[6]
Au contraire, appellants averred that they had paid P14,546.692.80 and P1,780,519.10 representing the advances appellee made. Thus, their total payment was P16,327,211.90, with an overpayment of P21,113.00 inasmuch as the total project cost was only P16,116,078.21.[7]
In due course, the court a quo rendered the repugned Decision.
Nonplussed, appellants are now before Us asseverating that the court a quo erred—
I
IN FINDING THE APPELLEE ENTITLED TO A RETENTION FEE SANS ANY PROVISION FOR RETENTION FEE IN THE CONTRACT AGREEMENT PROFORMA OF THE PARTIES CONTRARY TO JURISPRUDENCE ON THE MATTER.II
IN FINDING THE APPELLEE ENTITLED TO THE AMOUNT OF PHP450,308.50 REPRESENTING FINAL BILLING AND PHP297,692.94 FOR ADDITIONAL WORKS AS THESE ARE NOT BORNE BY THE EVIDENCE.III
IN GRANTING ATTORNEY’S FEES TO THE APPELLEE.
The Appeal is meritless.
Appellants intransigently assert that the court a quo fumbled in declaring them liable to pay appellee the amount of P1,276,698.35 which they allegedly deducted as 10% retention fee. They avow that the additional works done at the cost of P297,692.94 were without prior approval.
Appellants’ stance is specious.
We echo with approbation the findings of the court a quo that appellee had preponderantly demonstrated appellants’ deduction of 10% retention money from the progress billings, and that the additional works were undertaken and completed with their express consent, viz:
“As to the ten percent (10%) retention fee, it is clear that defendant did not deny that they have retained the same in their custody. While this court may agree that there was no provision for retention fee in the Contract Agreement Proforma dated 18 June 2004, however, it bears pointing out that defendant’s witness Lizadel Rivera identified progress billings and even affirmed that the amount of the retention fee were never returned to the plaintiff. The Court finds that plaintiff was only able to establish the amount of P1,276,698.40 equivalent to the sum of retention fee stated in the progress billings (Exhibits ‘L’ to ‘L-6’) and not Php1,616,521.20.”
x x x x x x
x x x It is worthy to note that the billing for additional works in the amount of P297,692.94 (Exh. “C-11”-proposed storage area and employees quarter-Php150,000.00, change order at swimming pool area-Php112,692.94, concreting of parking area-P35,000.00) was duly supported by bill of quantities and quotations (Exhs. “D”-“F”) which were signed by the defendant.”[8] (Emphases Ours)
Invariably, We find the court a quo’s appreciation and evaluation of evidence concordant with law and evidence adduced. Well-ensconced is the rule that factual findings of the trial court deserve a high degree of respect and will not be disturbed on Appeal[9] except for strong and valid reasons because the trial court is in a better position to examine the demeanor of the witnesses while testifying. In a civil case, final and conclusive are the factual findings of the court, if supported by clear and convincing evidence on record.[10]
In the construction industry, the 10 percent retention money is a portion of the contract price automatically deducted from the contractor’s billings, as security for the execution of corrective work—if any—becomes necessary.[11] The testimony of appellants’ witness speaks volumes that appellants withheld the retention fee of 10% from the progress billings—
“Q A Q A Q A Q A x x x x x x Q A Q A Q A x x x x x x Q Now in this progress billing no. 3, how much was billed by the plaintiff to the defendant corporation? A It’s P2,857,011.00. Q And do you agree with me that from this amount P2,857,011.00, defendant corporation again withheld a retention fee of 10% equivalent to P285,701.10? A Yes, Attorney. x x x x x x Q At any rate, you will agree again to (sic) me that defendant corporation withheld the amount of 285,701.10 from plaintiff? A Yes, sir. x x x x x x Q Now going over this Exhibit L-3 which according to you was the basis for the payment covered by official receipt no. 0696 marked as 5-E, how much was the billing? A The billing was 1,533,886.20, sir. Q And again you will agree with me that the defendant corporation withheld from the plaintiff the amount of 153,388.62 as retention? A Yes, Attorney. x x x x x x Q Now Madam Witness for this progress billing no. 5 how much was billed by the plaintiff for the defendant? A It’s 1,283,159.75. Q And you will again agree with me that the defendant corporation withheld the amount of 128,315.98 for the plaintiff which amount is equivalent of the retention? A Yes, sir. x x x x x x Q Madam Witness for this progress billing no. 6, how much was paid by the plaintiff for the defendant? A It(s) 811,310.00. Q And again you will agree with me that the defendant withheld from the plaintiff the amount of 81,131.00 representing retention? A Yes, Attorney. x x x x x x Q Progress billing no. 7 covers the period December 16, 2004 to January 15, 2005, am I correct? A Yes, Attorney. x x x x x x Q And you will again agree with me that for this progress billing no. 7, defendant corporation withheld from the plaintiff the amount 104,476.88 representing 10% retention fee, am I correct? A Yes, Attorney. x x x x x x Q Madam Witness you were earlier asked about the amount being withheld by the defendant corporation from the plaintiff every time it make (sic) payment to the plaintiff and I am referring to the 10% retention fee, do you still remember that? A Yes, Attorney. Q In fact(,) you have identified Exhibits L, L-1, L-2, L-3, L-4, L-5, L-6 and L-7, in all these exhibits except L-7, the defendant corporation withheld from the plaintiff 10% retention fee, am I correct? A Yes, based on the progress billing. Q Are you familiar with this 10% retention fee? A Yes, sir. Q And in fact, this 10% retention fee was never given back to the plaintiff, am I correct? A Yes, sir.”[12] (Emphases supplied)
Section 4, Rule 129 of the Rules of Court provides:
“Sec. 4. Judicial admissions. — An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.”
A party may make judicial admissions in (a) the pleadings, (b) during trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding. It is well-settled that judicial admissions cannot be contradicted by the admitter who is the party and binds the person who makes the same, and absent any showing that this was made thru palpable mistake, no amount of rationalization can offset it.[13]
Anent the propriety of the award of attorney’s fees, it is beyond cavil that appellee was compelled to litigate due to appellants’ refusal to satisfy his claim despite completion of the project agreed upon. Attorney’s fees may be awarded when a party is compelled to litigate or incur expenses to protect his interest by reason of an unjustified act of the other party.[14]
In a word, We perceive no reversible error committed by the court a quo in rendering the assailed Decision.
WHEREFORE, the Decision dated 14 May 2013 of the Regional Trial Court, Third Judicial Region, Olongapo City, Branch 74, in Civil Case No. 204-0-06, is hereby AFFIRMED.
SO ORDERED.
Diamante, and Salandanan-Manahan, JJ., concur.
[1] Original Records, pp. 368-374.
[2] Original Records, p. 374.
[3] Id., pp. 5-6.
[4] Id., p. 176.
[5] Id., p. 7.
[6] Id., pp. 2-4.
[7] Id., pp. 17-24.
[8] Original Records, pp. 373-374.
[9] See Aoanan, Sr. v. Aoanan, Jr., 522 SCRA 631, 641 (27 April 2007).
[10] See Gaje v. Vda. de Dalisay, 520 SCRA 272, 284 (3 April 2007).
[11] H.L. Carlos Construction, Inc. v. Marina Properties Corporation, 421 SCRA 428, 440 (29 January 2004).
[12] TSN, 8 March 2012, pp. 8-18.
[13] See Spouses Alejandro Manzanilla and Remedios Velasco v. Waterfields Industries Corporation, G.R. No. 177484, 18 July 2014.
[14] See Sandejas v. Ignacio, Jr., 541 SCRA 61, 83-84 (19 December 2007); See Serconsision Mendoza v. Aurora Mendoza Fermin, 729 SCRA 219, 239 (7 July 2014).