“x x x.
VERIFIED AD CAUTELAM SUPPLEMENTAL MOTION
(In Relation to the Defendants Pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxx)
(In Relation to the Defendants Pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxx)
THE
DEFENDANTS, by counsel, respectfully state:
1.
On xxx, 2015, the Defendant, by counsel, filed
with the Court via registered mail an “URGENT
MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE
PRELIMINARY INJUNCTION THEREUNDER”, dated xxx, which the undersigned counsel for
the Defendants has set for motion hearing on xxx at xxx AM, a previously
scheduled hearing set by the Court on another matter/incident.
2.
In Par. 6.2 to 6.2.1 of the said pending Motion,
the Defendants stated, to wit:
“x x x.
6.2.
Sec. 6,
Rule 58 (Grounds for objection to, or for motion of dissolution of,
injunction or restraining order) provides, inter alia, that “(t)he injunction or restraining order may also be
denied, or, if granted, may be
dissolved, on other grounds
upon affidavits of the party or person enjoined, which may be opposed
by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved,
if it appears after hearing that although
the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as
the case may be, would cause irreparable damage to the party or person enjoined
while the applicant can be fully compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by the court conditioned
that he will pay all damages which the applicant may suffer by the denial or
the dissolution of the injunction or restraining order. If it appears
that the extent of the preliminary injunction or restraining order granted is
too great, it may be modified”.
6.2.1.
In
due time, if the Order, dated xxx, is not recalled and revoked, as
prayed for hereinbelow, the Defendants
shall (and hereby reserve the right to) file the necessary pleading to invoke
their rights under the abovecited provision to DISSOLVE the Preliminary
Injunction, for the protection of the
peace, unity, orderliness, and general well-being and welfare of the homeowners
of xxx, whom they are duty-bound to serve as the duly elected
incumbent directors and officers of xxx.
3.
The said
pending Motion prayed for the following reliefs, to wit:
“WHEREFORE, in the interest of justice, it is respectfully
prayed that, for the legal and factual
reasons stated hereinabove:
1.
The ORDER, dated xxx, be RECALLED and REVOKED;
and
2.
The grant of a Preliminary Injunction stated thereunder
in favor of the Plaintiff be DISSOLVED.
FURTHER, the Defendants respectfully pray for such and other reliefs as may be
deemed just and equitable in the premises.
X x x.”
3.1.
The foregoing prayer of the aforecited pending
Motion is interlinked and related to
the subject matter and prayer of this Ad Cautelam Supplemental Motion.
3.2.
The bases for the filing by Defendants of their earlier
pending “URGENT MOTION TO RECALL AND
REVOKE THE ORDER, DATED APRIL 13, 2015; AND TO DISSOLVE THE PRELIMINARY
INJUNCTION THEREUNDER”, dated xxx, were:
3.2.1.
The failure
of Plaintiff to post an injunction bond whether a cash bond or a surety
bond;
3.2.2.
The lack
of proof that Plaintiff has posted an injunction bond, if any has been
indeed posted by Plaintiff, whether a cash bond or a surety bond;
3.2.3.
The lack
of proof that Plaintiff has served on
Defendants and/or their former Counsel copies of the Plaintiff’s the proof of posting of an injunction bond, if
any;
3.2.4.
The lack
of proof of the accreditation by the Supreme Court and the Office of the
Insurance Commission (OIC) of the Surety/Insurer of the Plaintiff which
issued the surety injunction bond, if
any;
3.2.5.
The lack
of proof that the Court has issued a formal
Writ of Preliminary Injunction,
if any, to enforce its Order, dated xxx,
on the matter, as required by Rule 58 of the Rules of Court;
3.2.6.
The lack
of proof of service of copies of the Writ of Preliminary Injunction, if any
has been issued, on the individual Defendants and/or their former Counsel;
3.3.
The Defendants argued in their aforecited
pending Motion that the Order, dated xxx, was UNENFORCEABE and INEFFECTIVE for
the legal reasons cited therein.
4. As
earlier stated, Sec. 6, Rule 58 of the Rules of Court (“Grounds for
objection to, or for motion of dissolution of, injunction or restraining order”)
provides, inter alia, that if a
preliminary injunction has been issued by the trial court, “the same may be dissolved on other grounds upon affidavits of the
party or person enjoined”, which may be opposed by the applicant also
by affidavits.
4.1.
More specifically, the said provision provides
that if a preliminary injunction “has
been granted, the same may be dissolved if it appears that, although the
applicant is entitled to the preliminary injunction”:
4.1.1.
The issuance or continuance thereof “would cause irreparable damage to the party or
person enjoined while the applicant can be fully compensated for such damages
as he may suffer”; and
4.1.2.
The former (i.e., party enjoined) “files a bond in an amount fixed by the court conditioned that he
will pay all damages which the applicant may suffer by the dissolution of the preliminary
injunction”.
4.1.2.1. The
bond referred to above is also called a COUNTER-BOND.
4.2.
Further, the aforequoted provision states that “if it appears that the extent of the preliminary injunction or restraining order
granted is too great, it may
be modified”.
5.
In Pars. 5 to 5.3. of the Defendants aforecited
pending “URGENT MOTION TO RECALL AND
REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION
THEREUNDER”, dated xxx, they argued that the preliminary
injunction secured by the Plaintiff in the Order, dated xxx, was maliciously
intended by the Plaintiff:
5.1.
To unjustly paralyze and injure the administration, leadership and
operations of the defendants, as the incumbent
members and officers of the Board of Directors of the xxx Subdivision Homeowners Association, Inc.
in actual control of the xxx Water Co.,
Inc. - affiliated water system, water facilities, and water connections serving
the homeowners of the said village;
5.2.
To unjustly mislead the homeowners
of the village that the Plaintiff is in good standing as a Cooperative
and has been contracted by the xxx to operate the xxx water system, facilities,
and connections.
5.2.1.
Note:
The 2005 xxx board resolution
granting to the Plaintiff the power to
operate the water system, facilities, and connections of the village had
been REVOKED in 2014.
5.3.
To unjustly
cause huge demoralization, confusion,
vexation, alarms and disunity
among the homeowners of xxx and within the leadership of the
Association.
6. The
Defendants are the duly elected incumbent
2014-2015 directors and officers of xxx, which owns and controls the water system, facilities and connections of
the xxx Subdivision.
6.1.
There is no
proof that the Housing and Land Use Regulatory Board (HLURB)
[a] has nullified the
election of Defendants as directors and officers of xxx since their active
service in xxx as elective leaders in 2013,
or
[b] that the latest xxx election
(held in December 2014), under
which they had assumed incumbency at present, has been invalidated, nullified
or revoked by the HLURB.
6.1.1.
Please note that only
the HLURB, not the Courts, has the sole,
exclusive, and original jurisdiction on matters that relate to:
[a] Homeowners;
[b] Homeowners Associations (HOAs);
[c] the internal
operations, management, and operations of Homeowners Associations; and
[d] the elections of directors
and officers of Homeowners Associations
pursuant to the Magna Carta for Homeowners and Homeowners
Associations (R.A 9904).
7. The
Defendants perform the duties and
responsibilities as elected directors and officers of xxx.
7.1.
Xxx OFFICE.
- The Defendants are in control, possession and administration of the xxx Office.
7.2.
Xxx WORKERS
AND SECURITY GUARDS. - The Defendants control and supervise the xxx workers and security guards.
7.3.
Xxx WATER
CO., I NC. - The Defendants are the ones in direct contact with and being directly consulted by the xxx WATER
CO., INC. xxx on matters that relate to the water service of xxx to the
homeowners.
7.3.1.
The xxx recognizes the Defendants as the
incumbent directors and officers of xxx for purposes of the distribution of the xxx bills to the
homeowners.
7.3.2.
The xxx recognizes the Defendants as the
incumbent directors and officers of xxx for purposes of the collection of the payments of the
homeowners that are due and payable to xxx.
7.3.3.
For all water service-related maintenance, repairs and other remedial actions
that the xxx homeowners require from time to time, they personally consult/confer
with and seek the direct assistance and action of the Defendants as their duly
elected incumbent directors and officers.
7.4.
LOCAL
GOVERNMENT UNIT. - The Local
Government Units (LGU) of xxx (City
and Barangay levels) consult and confer with and refer to the Defendants from time to time whenever there are
matters that require urgent and important coordination and/or action by and between
xxx and the LGU on matters that relate to xxx, the Homeowners, and the Homeowners
Associations within the Municipality, in general.
8. The
continuance of the preliminary injunction commanded in the Order, dated xxx:
[a] “would cause irreparable damage
to” xxx and the herein Defendants, as its duly elected incumbent
directors and officers,
[b] is violative of RA 9904, supra, which
grants sole, exclusive, and original
jurisdiction only to the HLURB (not the Courts) on matters
and controversies involving Homeowners Associations, and
[c] would expose the Court
to a potential Rule 65 action (certiorari, prohibition and mandamus).
8.1.
The preliminary injunction would in effect grant
to the Court the power and jurisdiction to
overrule the internal 2014 board resolution of xxx and the
supporting mass petition of its members-homeowners that REVOKE the 2004
board resolution of the old 2004 board that empowered the Plaintiff to operate the water system inside the xxx
Subdivision.
8.2.
The Court has no jurisdiction
and power to intervene in the internal operations, elections, and water
systems and other facilities of xxx
as a Homeowners Association, such jurisdiction having been granted by R.A.
9904, supra, to the HLURB.
8.3.
To do so would constitute abuse of discretion amounting to lack or excess of jurisdiction
on the part of the Court (Rule 65).
9. Upon
the other hand, the Plaintiff, as the injunction applicant, “can be fully compensated for such
damages as he may suffer” (Sec.
6, Rule 58).
9.1.
The Plaintiff
can be duly protected by the COUNTER-BOND that the Defendants shall post
with leave of Court, if and when this Motion and the earlier motion entitled “URGENT MOTION TO RECALL AND REVOKE THE
ORDER, DATED APRIL 13, 2015; AND TO DISSOLVE THE PRELIMINARY INJUNCTION
THEREUNDER”, dated xxx)” are granted by the Court.
10.
The Defendants reserve the right to present (and they hereby manifest that they
intend to and they shall present) testimonial and documentary evidence
to prove all the allegations stated in this Motion.
11. This
pleading is duly VERIFIED, the same to constitute as the AFFIDAVIT OF MERIT of the Defendants for purposes of this Motion,
as required by Rule 58.
12.The
Defendants are prepared to post a BOND
(i.e., counter-injunction bond) as required by Sec. 6, Rule 58 and at such
amount and under such terms and conditions as the Court may fix and impose.
13.
This Supplemental Motion is AD CAUTELAM in nature because the Defendants cannot presume how the Court would rule on their earlier
pending motion entitled “URGENT MOTION TO
RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY
INJUNCTION THEREUNDER”, dated xxx.
WHEREFORE, in the
interest of justice, it is respectfully prayed that, after notice and hearing:
1. This
“VERIFIED AD CAUTELAM SUPPLEMENTAL MOTION
(In Relation to the Defendants Pending “URGENT MOTION TO RECALL AND REVOKE THE
ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”,
dated xxx)” be noted and considered,
by way of ad cautelam remedy, to form
part of the proceedings and the resolution of the pending motion filed
by the Defendants, entitled “URGENT
MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE
PRELIMINARY INJUNCTION THEREUNDER”, dated xxx, which has been set for
motion hearing on xxx at xxx AM.
2. In
the event that the Defendants’ pending “URGENT
MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE
PRELIMINARY INJUNCTION THEREUNDER”, dated xxx”, is denied by the Court on the ground that [a] the Plaintiff has indeed
posted an injunction bond and [b]
that a formal Writ of Preliminary Injunction, if any, has indeed by issued by
the Court to enforce its Order, dated xxx, by
way of ad cautelam remedy, an Order be issued allowing the Defendants to post a
COUNTER-BOND to recall the Order, dated xxx, and to lift the Writ of
Preliminary Injunction issued thereunder, if any. (Sec. 6, Rule 58).
FURTHER, the Defendants respectfully pray for such and other reliefs as
may be deemed just and equitable in the premises.
Xxx City, xxx,
2015.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for Defendants
Unit 15, Star Arcade, C. V.
Starr Ave.
Philamlife Village, Las Pinas
City 1740
Tel. Nos. 8725443 &
8462539
X x x.
MANUEL LASERNA JR.
X x x.
X x x.”
