"x x x.
URGENT MOTION
TO RECALL AND REVOKE
THE ORDER, DATED xxx ;
THE ORDER, DATED xxx ;
AND TO DISSOLVE THE
PRELIMINARY INJUNCTION
THEREUNDER
PRELIMINARY INJUNCTION
THEREUNDER
THE
DEFENDANTS, by counsel, respectfully state:
1.
On xxx the Court issued an ORDER granting
Plaintiff’s motion for issuance of a Writ of Preliminary Injunction
(under the same terms and conditions of the Temp0rary Restraining Orders [TROs],
dated xxx).
1.1.
The TRO, dated xxx, imposed on the Plaintiff a
TRO bond of P476, 000.00.
2.
To this very day, per the Record in the
possession of the undersigned counsel for the Defendants (i.e., the Record of
the Defendants turned over to him by the latter), the Plaintiff has failed to post the necessary PRELIMINARY INJUNCTION BOND.
2.1.
Nothing in the Record shows that the Plaintiff
has posted a Preliminary Injunction Bond.
2.1.1.
NOTE: A related earlier ORDER, xxx, per the Record turned over by the to the
undersigned counsel, shows that the Counsel for the Plaintiff , as of such
date, had allegedly posted a CASH
BOND, per an alleged Official Receipt (OR) allegedly attached to the Record of
the Court, for purposes of the TRO
earlier issued on xxx.
2.1.1.1.
At that time, the Preliminary Injunction agenda was
still pending consideration and hearings before the Court.
2.1.2.
There is no showing in the Record of the case that
the Defendants had been duly furnished copies of the alleged OR referred to in
the said Order either personally or thru their former Counsel.
2.2.
Nothing in the Record shows that the Plaintiff
has filed a “Motion To Approve Preliminary Injunction Bond”.
2.3.
Nothing in the Record shows that the Court has
issued an ORDER approving a separate Preliminary Injunction Bond.
2.4.
Nothing in the Record shows that the issuing
Surety Company or Bonding Company, if
any, has qualified under the Accreditation/Qualification
Requirements/Rules of the Supreme Court.
2.5.
Nothing in the Record shows that the Court has
issued an ORDER approving the
credentials, qualifications, and license to operate of such Surety Company or
Bonding Company, if any.
3.
More specifically, nothing in the Record shows
that the Court has issued a formal Writ of Preliminary Injunction to this very
date.
4.
The aforecited Order, dated xxx, in effect,
remains on inactive status (effectively on archived status) to this
very date.
4.1.
For lack (or non-issuance) of a formal Writ of Preliminary Injunction,
the said Order remains and ought to be UNENFORCEABLE.
4.2.
For lack of (i.e., failure to post) the mandatory
Preliminary Injunction Bond, all the injunctive commands stated in
the said Order against the Defendants remain and ought to remain UNENFORCEABLE.
5.
The Plaintiff relies on the said inactive (if not “effectively archived”
Order) Order and on the unenforceable, unissued, and unbonded/unsecured Preliminary Injunction issued thereunder:
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 or has a legal
basis to be the accredited/contracted Operator of 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 destructive
disunity among the innocent homeowners of xxx and within the very
leadership core of the Association.
6.
It is worthwhile to discuss hereinbelow the main
provisions of RULE 58 (PRELIMINARY INJUNCTION) insofar as they may relevant and
material to this Motion.
6.1.
Sec. 4
(b), Rule 58 (Verified application and bond for preliminary injunction
or temporary restraining order)
provides, inter alia, that “(u)nless exempted by the court, the
applicant files with the court where the action or proceeding is pending, a bond
executed to the party or person enjoined, in an amount to be fixed by the court,
to the effect that the applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or temporary restraining order
if the court should finally decide that the applicant was not entitled thereto.”
6.1.1.
The aforecited provision of Rule 56 further
provides that “(u)pon approval of the requisite bond, a writ of preliminary injunction shall be
issued.”
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, 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.
6.3.
Sec. 7,
Rule 58 (Service of copies of bonds; effect of disapproval of same) provides, inter alias, that “(t)he party filing a bond in
accordance with the provisions of this Rule shall
forthwith serve a copy of such bond on
the other party, who may except to the
sufficiency of the bond, or of the surety or sureties thereon”.
6.3.1.
It further provides that “(i)f the applicant’s bond is found to be insufficient in amount, or if
the surety or sureties thereon fail
to justify, and a bond sufficient in amount with sufficient sureties
approved after justification is not
filed forthwith, the injunction shall be dissolved.
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.
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
MANUEL LASERNA JR.
X x x.
X x x.”
