MOTION TO INTERVENE
THE UNDERSIGNED MOVANTS, by counsel,
respectfully state:
I.
THE
MOVANTS.
1. The
Movants are homeowners and tenants of the xxx SUBDIVISION HOMEOWNERS
ASSOCIATION, INC. (XXX).
2. For
convenience and for purposes of brevity and conciseness of the presentation of
the contents of this motion, the names and personal circumstances of the Movants
are enumerated in the attached “List of
Movants”, marked as Annex “xxx”
hereof.
2.1.
It will be noted that the total number of the
Movants is more than __________________ (____).
2.2.
It is not advisable to enumerate all the names
and personal circumstances of the Movants in Par. 1, supra, or in this particular Par. 2 of this Motion, because the
very long list thereof would consume so many pages in the body of this Motion
such that the reader of the Motion would unnecessarily suffer from vision and mental fatigue and psychological
boredom just to go over the long list.
II.
THE
COMPLAINT.
3. NATURE. - The Complaint (denominated as “Petition” by Plaintiff) is one for
INJUNCTION.
4. PRAYER. – It prays for a judgment
permanently restraining the
Defendants from:
4.1.
Opening
the pipes that the Defendants had installed in order to supply water to
the residents of Xxx Subdivision;
4.2.
Further
installing additional components to the pipe system that they had set up’
5. Further,
it prays for a judgment ordering the Defendants to remove the pipe
system that they had set up.
6. Furthermore,
it prays for attorney’s fee:
6.1.
Acceptance Fee of PXXX; and
6.2.
Appearance Fee of PXXX per hearing.
7. The
basic allegations of the Plaintiff in the Complaint are as follows:
7.1.
That the Plaintiff is a Multi-Purpose
Cooperative;
7.2.
That the xxx Board of Directors of XXX allowed
the conversion of its Water Committee into a Cooperative (which is now the Plaintiff-Cooperative
XXX).
7.3.
That the Housing and Land Use Regulatory Board (HLURB)
ordered in xxx the conduct of a Referendum among the XXX members to ratify the
right of the Plaintiff to control and operate the Water System of the Xxx
Subdivision.
7.4.
That the xxx Referendum ratified the power of
the Plaintiff-Cooperative to control and operate the said Water System.
7.5.
The Plaintiff knows of the existence of Board Resolution No. xxx, dated xxx, REVOKING
Board Resolution No. xxx and Board Resolution No. xxx. See Annex
“xxx”, Complaint.
7.5.1.
Board
Resolution No. xxx, dated xxx, was adopted by the XXX Board of Directors
led by Defendant Xxx (President).
7.5.2.
The Plaintiff does not recognize it.
7.5.3.
The Plaintiff honors only the two (2) xxx board resolutions of the XXX Board of
Directors – i.e.:
(a)
Board
Resolution No. xxx and
(b)
Board
Resolution No. xxx,
which
converted the XXX Water Committee into a Cooperative (which is now the
Plaintiff).
7.6.
That in March xxx the Defendants installed new pipe
lines for the above purpose with the intent to operate and control the Water
System of the Subdivision.
7.7.
That the Plaintiff would suffer financial losses
if no injunction is issued against them.
8. Clarificatory Notes:
8.1.
The Manila Water Co., Inc. (MWCI) in xxx dealt
with XXX, by way of bulk water service
agreement, to distribute water among the homeowners of the Xxx Subdivision.
8.2.
As of the time of filing with this Court of the
instant Complaint in March xxx, the
Defendants (“Xxx Board”) were the ones
officially dealing with, and being honored by, the MWCI for the
distribution of water to and the collection of payments by the homeowners, by
way of bulk water service agreement.
8.3.
The water controversy in the Subdivision has
affected the elections of the XXX Directors and Officers for some years now.
8.3.1.
There are two (2) competing Boards of Directors
of XXX.
8.3.2.
One is led by the group of Xxx Xxx, who is
affiliated with the Plaintiff-Cooperative.
8.3.3.
The other is the group of Defendants Xxx Xxx,
et. al.
III.
THE
COMMENT (ANSWER).
9. The
pro se Comment (Answer), dated xxx, of the Defendant prays for the
dismissal of the Complaint for lack of merit.
10.
The Defendants allege in their pro se Comment (Answer):
10.1. That
the Defendants constitute the legitimate incumbent Board of Directors of XXX.
10.1.1.
The next regular annual election of XXX will be
held in xxx.
10.2. That
the Defendants have been holding office at the official XXX Office in the Xxx Subdivision.
10.3. That
the Defendants started early this year to gradually install a water pipes
system in the Subdivision in preparation for the closure ordered by the
National Water Resources Board (NWRB) of the existing centralized water pump system
owned by xxx (a Co-Defendant).
10.3.1.
The Xxx Water System (MWS) has been engaged in
the business of distributing water to different homes in the Subdivision since
1998 (apparently without the necessary Permit
to Operate from the NWRB).
10.4. That
the Defendants were not guilty of the crime of water pilferage.
10.4.1.
They were duly authorized by the MWCI-XXX bulk water service agreement:
(a)
To distribute water in the Subdivision,
(b)
To collect the payments of the homeowners, and
(c)
To install and operate an improved water pipes
system (water reticulation system) in the Subdivision,
being the
legitimate incumbent Directors and Officers of the Board of Directors of XXX
with whom the MWCI was officially transacting business as the legal representatives
and elected Directors and Officers of XXX.
10.5. That
the MWCI did not grant unto the Plaintiff the power and authority to distribute
the MWCI water supply to the residents of the Subdivision.
10.5.1.
The said power and authority were granted by the MWCI only to the XXX, acting
thru its legitimate incumbent Board of Directors.
10.6. That
it was illegal for the XXX Board to divert the MCWI water supply to a third business
entity, i.e., the Plaintiff, without
the consent of the MWCI.
10.7. That
the resolutions of the XXX Board converting the XXX Water Committee into a
Cooperative (i.e., the Plaintiff), without the consent of all homeowners and
for the private profit and benefit of the Plaintiff, was illegal.
10.8. That
MCWI-XXX bulk water service contract prohibited the RESALE by XXX of the MWCI water
supply to any unauthorized third party-water concessionaire, i.e., the Plaintiff.
10.9. That
the xxx HLURB Decision cited by the Plaintiff in its Complaint, which
purportedly recognized the Plaintiff as the authorized water operator/supplier in
the Subdivision, was unjust; and that the xxx referendum was deceitfully
manipulated by the Plaintiff.
10.9.1.
It was seasonably appealed by Defendant xxx (the
derivative suit Complainant-Appellant
therein who acted for the benefit of XXX) to the Court of Appeals. (Cf. R.A. No. 9904, Magna Carta for Homeowners and Homeowners Associations).
10.9.2.
Defendant Xxx and XXX later withdrew the said
appeal because the issues therein had become moot and academic by the
subsequent ratification by 70% of the XXX members of the authority of the Defendants
to control and operate the water system of the Subdivision (not the Plaintiff).
10.10.
That 70% of XXX members had rejected the right
of the Plaintiff to control and operate the water system of XXX.
10.11. That in a conciliation conference among the parties
and a lawyer for MWCI held at the HLURB in xxx, it was agreed that the “water reticulation system inside the
Subdivision” was the responsibility of XXX (i.e., the Defendants) and that the responsibility of MWCI was the “bulk water supply connection.”
10.12.
That the
water system of the Subdivision is owned by XXX Homeowners Association. The
Plaintiff does not own it.
10.13.
That the Defendants were officially and
effectively managing the XXX water system
as of the early part of xxx, pursuant to its MWCI bulk water service
contract, when the Plaintiff filed the instant Complaint and when the Court
restrained the Defendants (i.e., incumbent XXX Board) from performing their
lawful duties as Directors and Officers of XXX insofar as the protecting and
operating the XXX Water System of the Subdivision was concerned.
IV.
THE
ISSUES.
11. The
Plaintiff believes that the issues are:
(a)
Whether the Defendants should be restrained from
proceeding with their pipes
installation;
(b)
Whether the Defendants should be restrained from
opening up their installed pipe lines to supply the Xxx Subdivision
residents; and
(c)
Whether the Defendants should be ordered to remove the pipes that
they had installed.
12. The Defendants submit that
the basic and real issue is:
Who between the Plaintiff
(Cooperative) and the Defendants (incumbent elected XXX Directors and Offices)
has the legal right to mange, control,
and operate the Water System of the Xxx Subdivision.
V.
THE LEGAL
INTEREST TO INTERVENE.
13.The
Movants have a LEGAL INTEREST (a) in the matter in
litigation and (b) in the success of
the Defendants.
13.1.
The Defendants are the duly elected incumbent Directors and Officers of the XXX.
13.2.
They are the genuine
leaders of XXX.
13.3.
The Movants respect,
honor, and obey the official actions, decisions, and resolution of the
Defendants as incumbent Directors and Officers of XXX.
13.4.
The actions, decisions and resolutions of the
Defendants as incumbent Directors and Officers of XXX are intended to preserve and
promote the general welfare of the
homeowners of the Xxx Subdivision.
13.5.
As homeowners of the Xxx Subdivision, the Movants
are members and voters XXX.
13.5.1.
As homeowners of the Xxx Subdivision and as
members/voters of XXX, the Movants have a legal interest:
13.5.1.1.
To insure that the water service receivables of XXX from the homeowners are duly recorded
and protected and are not illegally paid
to the Plaintiff;
13.5.1.2.
To protect, preserve and maintain the Water System of the Xxx Subdivision that
XXX owns;
13.5.1.3.
To preserve the unity
of command and leadership of the incumbent Board of Directors of XXX for
the good of the Community;
13.5.1.4.
To see to it that the official actions, decisions,
and resolutions of the Defendants as the duly elected incumbent Directors and
Offices of XXX are enforced.
(More particularly: The xxx Board Resolutions of the incumbent XXX Board of Directors and
the Mass Ratification of a great majority of the homeowners REVOKING the
authority of the Plaintiff to operate the Water System of the Xxx Subdivision);
13.5.1.5.
To prevent the escalation of demoralization, disunity, and confusion being caused by the
Plaintiff with respect to the ownership, possession, control and operation of
the Water System of the Xxx Subdivision;
13.5.1.6.
To stop the
Plaintiff from further acts of harassment,
abuse, threats, intimidation, coercion, disconnection of the water service, and
illegal removal, destruction and taking of the water meters of the dissenting
homeowners, resulting in great sufferings and inconvenience on the part of the innocent
families of the dissenting homeowners.
13.6.
The Plaintiff alleges that the past and present official
actions, decisions and resolutions of the Defendants as the incumbent Directors
and Officers of XXX in relation to the Water System, which XXX owns, are
illegal.
13.6.1.
On the basis of such an allegation the Plaintiff seeks
a Judgment of Injunction and Damages
against the Defendants.
13.7.
Any Judgment for Injunction and Damages adverse to the Defendants that might be
promulgated by the Court after trial will adversely
affect:
13.7.1.
The funds, assets, and networth of XXX;
13.7.2.
The ownership
rights of XXX with respect to the administration
and protection of the Water System of the Xxx Subdivision (i.e., right to enjoy, right to possess,
right to administer, right to protect, etc.);
13.7.3.
The organizational, financial, and administrative status
of XXX; and
13.7.4.
The common good, general welfare, aspirations, and
quality of life of the Movants and the rest of the homeowners of the Xxx
Subdivision and their families.
14.The
Movants are so
situated as to be adversely affected:
14.1.1.
By the final judgment and any and all incidental or
interlocutory orders issued and to be issued by the Court in the course of the past,
present and future proceedings of this case, especially if the same are
favorable to the Plaintiff and adverse to the Defendants;
14.1.2.
By any judgment or order of distribution or other
disposition of the property involved in this case, especially the Water System
of the Xxx Subdivision which is owned by XXX and its members.
15. This motion is seasonably filed
in the sense that, as of this time, this case is still in its initial or preliminary stage.
15.1. It has not been
set yet for Pre-Trial Conference.
15.2. It has not been
referred yet to the Mediation Center.
15.3. It has not been
set yet for Judicial Dispute Resolution
(JDR).
15.4. The Plaintiff has not
yet commenced the presentation of its evidence-in-chief.
16.This motion, if
granted, will not unduly delay this
case.
16.1. It will not prejudice the adjudication of the rights
of the Plaintiff.
17. The rights of the
Movants can only be fully protected if the Court (a) would grant this motion to intervene and (b) would grant their motion of the Movants for a 15-day period to file their “Joint Answer-in-Intervention” so that
they could thereafter formally participate in the trial of this case to prove
the merits of their intervention.
VI.
RULE 19
(INTERVENTION).
18. In fine, Sec. 1, Rule 19 (Intervention) of the
Rules of Court provides that a person:
(a)
Who has a legal interest in the matter in
litigation, or
(b)
Who has a legal interest in the success of either
of the parties, or
(c)
Who has an interest against both, or
(d)
Who is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of
an officer thereof
may, with leave of court, be allowed to intervene in the action.
VII.
THE 15-DAY PERIOD
PRAYED FOR HEREIN.
19. It will be noted that although Rule 19 states that the Answer-in-Intervention should be attached to the Motion, nothing in said Rule:
19.1.
Expressly and absolutely prohibits the Movants
from praying for an additional time of 15
days, counted from receipt of the Order of the Court granting this motion, to file their “ Joint Answer-In-Intervention”.
19.2.
Expressly and absolutely prohibits the Court
from exercising its sound judicial
discretion to give to the Movants the reasonable 15-day period referred to
in the foregoing paragraph to file their “
Joint Answer-In-Intervention”, in the interest of fair play and justice.
20.
The Movants and their Counsel would need
sufficient time to hold collective and individual meetings, discussions,
planning sessions, and workshops (a) to
review, develop and prepare their theory, defenses, evidence, witnesses, and other
relevant legal presentations and (b)
to conduct further legal research to prepare an intelligent “Joint Answer-In-Intervention”.
21.
This Motion for a 15-day period to file the Movant’s “Joint Answer-in-Intervention” is not intended to delay this case but is being made solely for the
foregoing reasons.
21.1. Please
note that this case is still in its preliminary
or initial stage and will not be
prejudiced by the 15-day period prayed for in this Motion.
VIII.
RELIEF.
WHEREFORE, premises considered and in
the interest of justice, the Movants respectfully pray that, after notice and
hearing, an ORDER be issued:
1. Granting
the Movants the right to INTERVENE as
Defendants-in-Intervention; and
2. Giving
the Movants a period of 15 days to file
their “Joint Answer-in-Intervention”, counted from receipt of the Order
granting this Motion.
FURTHER, the
Movants respectfully pray for such and other reliefs as may be deemed just and
equitable in the premises.
xxx City, xxx,
2015.
