Republic of the Philippines REGIONAL TRIAL COURT 8th Judicial Region BRANCH 8 Tacloban City HEIRS OF THE LATE

SPS. DIOCLESIO & FELIXBERTA EMPERIO, namely: Evangeline E. Apolinario, Erlinda E. Gavro, Ely Eva E. Tibe, Dioclesio A. Emperio Jr., Diofel A. Emperio, Delia A. Emperio, Dioangel A. Emperio, Erna A. Emperio and Felixberta A. Emperio, and Heirs of Proceso Emperio & late Candida T. Emperio, namely: Nilda T. Emperio, all represented by DIOCLESIO A. EMPERIO, JR. Plaintiff, -v e r s u sEDNA ELLA E. HAYNE and GORDON VR WINZAR, Defendants. x- - - - - - - - - - - - - - - - - - - - - - - - - - x

CIVIL CASE No. 2007-04-39 for: ANNULMENT/CANCELLATION OF DOCUMENTS/PAPERS, ETC., OWNERSHIP AND DAMAGES

ANSWER
DEFENDANTS, through counsel, unto this Honorable Court respectfully aver: THAT---

DENIALS
1. Paragraphs 1, 2 and 19 of complaint: While defendants admit the legal personality of DIOCLESIO EMPERIO JR. as plaintiff for himself they DENY that plaintiff is a duly authorized representative of the rest of the aforenamed Heirs of Sps. Dioclesio and Felixberta Emperio and the Heirs of Proceso Emperio ( Note: who is still alive) and the late Candida T. Emperio for want of special power of attorney. The subject matter of the case, in the view of defendants, should be limited only to the interest alone of the sole plaintiff. 2. Paragraph 3 of the complaint: The estate of Damian Antoni (Lot 261) was subdivided into Lot 261A, 261B and 261C (for Sofia Antoni Emperio), which in turn was subdivided to Lot 261C (for Dioclesio Emperio Sr.) and Lot 261D (for Proceso Emperio).

2 3. Paragraph 4 of the complaint: While defendants admit that the Sps. Dioclesio and Felixberta Emperio begot about ten (10) children, they deny as to the fact of their whereabouts for want of information sufficient to form a belief as to the truth or falsity thereof. 4. Paragraph 6 of the complaint: Said property (referring to T-10480) has already been partitioned among the heirs, as evidenced by the deed of extrajudicial settlement1 and memorandum of agreement2. These documents were attached by plaintiff Dioclesio Jr. in a same case involving the same parties for a same cause of action pending litigation in RTC Br. 34, Tacloban City and docketed as Civil Case No. 2007-0212, where he attached said documents as Annexes N and M respectively, and did not deny the genuineness of his signature and due execution since 1991 until now. 5. Paragraph 7 of the complaint: this allegation is plain hearsay and that it is irrelevant in this instant case, since the ancestral home at Mabini St. (covered by TCT No. T-13904) is the subject matter of the other aforecited Civil Case No. 2007-02-12. 6. Paragraphs 8 and 9 of the complaint: the purported affidavit of Proceso Emperio (Annex C, C-1 and C-2 of complaint) produced by Diofel Emperio refers to another Lot No. 261-C not subject of this case, while the SPA (Annexes D to D-3) executed by defendant Edna Ella Emperio to defendant Gordon Vr Winzar are not the documents sought to be annulled; hence, these paragraphs are denied for being irrelevant and immaterial. Moreso, the plaintiff is not a party to these documents. 7. Paragraphs 10, 11, 12, 13 and 14 of the complaint: while plaintiff himself admits that he was able to see defendants in the renovated house at Mabini St., Alangalang, Leyte, defendants deny the rest of the allegations that there was no such dialogue between them; otherwise, if there was no such dialogue, plaintiff would not have been able to secure the documents from the Municipal Engineers Office regarding the basis to justify the demolition of the ancestral house and its renovation (see: Building Permit, Annex S of complaint), as well as the legal construction of defendants Fun Park project at Malaihaw, Brgy. Mudboron, Alangalang, Leyte. All these documents secured by plaintiff from the Municipal Engineers Office were supplied to said office by his brother Diofel Emperio, when the latter was still the foreman of the construction of the fun park and the renovation of the ancestral home.

1 2

Annex 1 Deed of Extra-Judicial Settlement Annex 2 Memorandum of Agreement

3 8. Paragraph 15 of the complaint: plaintiffs bare allegation contradicts his very purpose of filing this case that of annulling the DEEDS OF ABSOLUTE SALE executed by Diongel (par. 12.c), Delia Emperio (par. 12.d), Erlinda Gavero (par. 12.e) and Evangeline Apolinario (par. 12.f) (Note: does it mean that he is not questioning the other deeds of absolute sale executed by the other siblings of their pro-indiviso share in the lot subject of this case?) 9. Paragraph 16 of the complaint: defendants deny that there was any earnest efforts towards a compromise among members of the same family. Instead, plaintiff DIOCLESIO JR. and DIOFEL immediately filed a case against defendants before Brgy. Sto. Nino, Alangalang, Leyte. 10. Paragraph 17 of the complaint: the allegation on the cited

documents/papers is VAGUE! Including other related issuance paper/documents as a consequence thereof makes it MORE VAGUE! For all we know, these are the very documents involved in Civil Case No. 2007-02-12 before RTC Br. 34. That makes plaintiff guilty of engaging in forum shopping, and should be liable for contempt of court as well as the outright dismissal of this case. 11. As to paragraphs 20 and 21 of the complaint, If plaintiff purportedly incurred moral damages amounting to P1 Million, alleged litigation expenses and attorneys fees, he himself has to be blamed for filing the present malicious, unfounded, and false complaint against herein defendants; as a matter of fact, he even connived with his brother Diofel Emperio to file malicious and fabricated charges of falsification of public documents against defendant Gordon Winzar in I.S. No. 2006-888 in revenge for the latters terminating Diofel Emperio as foreman of their three (3) simultaneous constructions in Mabini St., the Ella Wet and Wild Family Fun Park and Ellas Rancho due to stealing, which ultimately resulted in the dismissal of the charges.

POSITIVE ALLEGATIONS
12. Defendants replead and incorporate all the above stated allegations, the truth of the matter are stated hereunder. 13. Defendant Edna Ella Emperio had a decent work in the Australian Government for some 10 years, while defendant Gordon Vr Winzar is a retired highly decorated military man who served with USA, Australia and UK.

4 14. They have invested approximately P12 Million into the country from their modest earnings, and would in no way taint their reputation and their stay in this country for good by ever doing anything illegal or distasteful. 15. Trump up charges of falsification of public documents were filed by plaintiff against defendant Gordon Winzar before the Tacloban City Prosecutors Office in I.S. No. 2006-888; the case was dismissed, evidenced by Resolution3 dated 27 December 2006 and Resolution of Review4 dated 16 February 2007. 16. The prosecutors resolution clearly shows in gist the motive of the herein plaintiffs, when he ruled: it is incredible that respondent, an Australian National, would indulge such illegal act in the midst of a hostile arena when he is alone and subservient to his Filipina partner. 17. Because, in truth, it was Diofel who submitted the requirements for the issuance of locational and zoning clearance which included the affidavit in question (Annex C of complaint); that Diofel is evidently motivated by ill-will when he and plaintiff filed the criminal case against defendant Winzar considering that on August 21, 2006 Diofel was terminated from his job as foreman for stealing almost P500,000.00 from Winzar; that in retaliation of his being terminated, Diofel sought the connivance of Dioclesio Jr. to accuse Winzar of falsifying a document that Diofel himself has prepared. 18. Not long after Dioclesio Emperio Sr. died on 22 April 1991, the surviving spouse Felixberta Acosta Emperio caused the preparation of a Memorandum of Agreement and a Deed of Extrajudicial Settlement passed around to all her siblings to be signed by them and notarized before Notary Public Generoso Casimpan on August 30, 1991. No one ever contested these documents since then. 19. In said Deed of Extrajudicial Settlement and the Memorandum of Agreement, all the heirs of Dioclesio Emperio Sr. (including plaintiff Dioclesio Jr.) agreed to adjudicate Lot 261 pro-indiviso, share and share alike, among all the children. 20. Plaintiffs inclusion of the Heirs of Proceso and the late Candida Proceso is impropriate and done in bad faith considering that the share of Proceso, which is Lot 261-D, is not the lot subject of this case! The lot subject of this case is Lot 261-C, which was the share of Dioclesio Emperio Sr. (please refer to par. 3 hereof)

3 4

Annex 3 Resolution of Ctiy Prosecutor dated 27 December 2007 Annex 4 Resolution of Review dated 16 February 2007

5 21. Only the executor of the deed of absolute sale has the right to impugn his/her signature or the genuineness and authenticity of said document, not an outsider like plaintiff Dioclesio Emperio Jr. 22. Based on the Deed of Extrajudicial Setttlement and Memorandum of Agreement aforecited, the shares of plaintiff Dioclesio Emperio Jr. and that of Ely Tibe are at the back of the premises of Ellas Fun Park. The said park totals 5,620.80 sq.m. more or less, consisting of the respective shares of Evangeline Apolinario, Erlinda Gavero, Diofel Emperio, Delia Emperio, Dioangel Emperio and Felixberta Emperio, and including defendant Ellas share, at 702.60 sq.m. each, plus one share allotted as a mausoleum for their deceased parents. 23. Evidently, Plaintiff has filed this case in order to extort money from his sister, herein defendant Edna Ella Emperio, after seeing how beautiful the residential house has been renovated from the old house, and how much the land in Malaihao has appreciated when she developed it into a P12 Million worth of the now famous resort known as Ellas Wet and Wild Family Fun Park.

SPECIAL DEFENSES
24. The complaint states no cause of action against the defendants due to the absence of the elements/requisites of a valid cause of action; specifically, there is no allegation of fraud or anything that vitiates consent in nullifying the documents subject of this case. Moreso, the plaintiff has no legal personality in the documents he wants to be annulled or cancelled. 25. Even granting there is a cause of action, the court cannot proceed for failure of the plaintiff to implead indispensable parties, who are real parties in interest in this case. Pursuant to Section 4, Rule 3 of the 1997 Rules of Civil Procedure, the husband and wife shall sue or be sued jointly. In the instant case, plaintiff did not implead his wife as co-plaintiff. 26. Moreover, pursuant to Article 151 of the Family Code, no suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts towards a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.

6 27. Defendant Edna Ella Emperio has bought the pro-indiviso shares in Lot 261C of her other siblings (Evangeline Apolinario, Erlinda Gavero, Diofel Emperio, Delia Emperio, Dioangel Emperio and Felixberta Emperio) in good faith and for value. 28. Plaintiff (or even the rest of his siblings) is estopped from questioning the authenticity and due execution of the deed of extrajudicial partition and memorandum of agreement in 1991 (or after lapse of 16 years ago). In fact, he/they did not oppose the renovation of the dilapidated ancestral house while on-going on the basis of the memorandum of undertaking in 1993. Rather, plaintiff was prompted to file the criminal case aforecited, a civil case at RTC Br. 34, Tacloban City, and in the instant case when his other brother Diofel Emperio was terminated as foreman by defendants for stealing money and construction materials worth more than P500,000.00 from the renovation of the ancestral house and the fun park. 29. Under Rule 16 (e) of the Rules of Court, this complaint ought to be dismissed when there is another action pending between the same parties for the same cause. In this regard, defendants invite the attention of the Honorable Court that Civil Case No. 2007-02-12 now pending before Br. 34 of the RTC of Tacloban City involves the same parties for the same cause of annulment/cancellation of the same documents/papers, etc., ownership and damages. This verily constitute a violation of Rule 16 (e) of the Rules of Court as well as the provisions of forum shopping contained in Rule 7, Section 5 thereof.

COUNTERCLAIM
30. Defendants replead, adopt and incorporate by way of reference all the allegations of the preceding paragraphs of their answer. 31. Having been made to defend themselves in an unfounded suit, the defendants will be compelled to hire the services of a lawyer and shall be obligated to pay the sum of P30,000.00 as attorneys fees and appearance fee of P2,000.00 per court appearance, and they will incur litigation expenses estimated to be no less than P100,000.00. 32. The filing of this present malicious, unfounded, and false complaint, defendants suffered sleepless nights, mental anguish, besmirched reputation and wounded feelings for which plaintiff is liable to pay each of the defendants the sum of P200,000.00 as moral damages; and in order to deter others who maybe similarly situated as plaintiff, the latter should be adjudged to pay each of the defendants the sum of P50,000.00 as exemplary damages.

33. For the loss of income in the business of the fun park due to bad publicity caused by plaintiff in the filing of this unwarranted suit, the plaintiff should be adjudged to pay the amount of not less than P200,000.00 as actual damages.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court that after due hearing, judgment be rendered in favor of the defendants and against plaintiff, to wit: 1. DISMISSING the complaint of the plaintiff with costs against him; 2. DECLARING all the documents subject of the complaint as valid and enforceable; 3. DECLARING the defendant EDNA ELLA EMPERIO as the lawful owner of the parcels of land subject of these documents; 3. On the counterclaim, defendants pray for judgment ordering the plaintiffs to pay the defendant P30,000.00 as attorneys fees and P2,000.00 per appearance fee; the sum of not less than P100,000.00 as litigation expenses; the sum of P200,000.00 as moral damages, the sum of P50,000.00 as exemplary damages; and the sum of P200,000.00 as actual damages. Granting defendants such other relief just and equitable in the premises. Tacloban City. May 28, 2007.

LEO S. GIRON
Counsel for the Defendants 253 Avenida Veteranos, Tacloban City Roll No. 37379 IBP Lifetime Member No. 00733 PTR No. 6100976; 1-2-07; Tacloban City

Republic of the Philippines Tacloban City

) ) SS

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

WE, EDNA ELLA E. HAYNE and GORDON VZ WINZAR, both of legal age, Filipino and Australian citizens respectively, and residents of Alangalang, Leyte, after having been first sworn according to law, hereby state: We are the defendants in the above-entitled case; we have caused the preparation of the foregoing Answer; we have read it and the allegations therein are true and correct of our own personal knowledge or based on relevant and authentic records. That on the COUNTERCLAIM, we have not theretofore commenced any action or filed any claim or pleading involving the same or similar issues or subject matter in the Supreme Court, Court of Appeals, lower courts or administrative bodies and quasi-judicial agency and to the best of my knowledge, no such other action or claim is pending therein; and if there is such other pending action or claim, a complete statement of the present status thereof; and, if we should thereafter learn hereafter that the same or similar action or claim or pleading has been filed or is pending with the Supreme Court, Court of Appeals, lower courts, administrative bodies or quasi judicial agency, we shall undertake to report that fact within five (5) days from knowledge thereof to the court wherein this aforesaid complaint or initiatory pleading has been filed. IN WITNESS WHEREOF, we have hereunto set our hands this 28th day of May 2007 at Tacloban City, Philippines.

EDNA ELLA E. HAYNE

GORDON VZ WINZAR

SUBSCRIBED AND SWORN to before me this 28 May 2007 at Tacloban City, Philippines. Doc. No. ___ Page No. ___ Book No. 52 SERIES OF 2007 COPY FURNISHED: ATTY. FRANCIS TIBE Counsel for the Plaintiff BRGY. 86, SAN JOSE, TACLOBAN CITY EXPLANATION A legible copy of this ANSWER was furnished Atty. Francis Tibe by registered mail for lack of messengerial service. (If served personally, please disregard explanation.) LEO S. GIRON