“x x x.
R E P L Y
(In Re: Plaintiff’s
OPPOSITION, Dated xxx, to Defendants’ Pending “URGENT MOTION
TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY
INJUNCTION THEREUNDER”
THE DEFENDANTS, by counsel,
respectfully state:
1. It
will be recalled that in the Defendants’ pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO
DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, the Defendants prayed,
thus:
“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.”
2. It
will likewise be recalled that in the subsequent related motion of the
Defendants, entitled “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)”, which is also pending before this
Court, they prayed, thus:
“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 xxxx)” 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.
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 xxxx, 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.”
3. Furthermore,
in relation to the pending COUNTERBOND
ISSUE, it will be recalled that the Defendants have likewise
subsequently filed “URGENT EX
PARTE MOTION FOR LEAVE OF COURT TO PRESENT EVIDENCE TO PROVE THE FACTUAL
ISSUES IN SUPPORT OF THE “INJUNCTION
COUNTERBOND” ISSUE UNDER SEC. 6, RULE 58”, which is also pending before this Court.
It prays for the following reliefs:
“WHEREFORE, premises
considered, it is respectfully prayed that the Defendants, thru Counsel, be
granted leave of Court to present Testimonial and Document Evidence to prove
the Factual Issues referred to and provided in Sec. 6 of Rule 58 for purposes of the “Injunction Counterbond” Issue.
FURTHER, it is respectfully
prayed that the resolution by the Court of the aforecited pending Motion (i.e., “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)”,
dated xxx, be held in abeyance,
pending presentation of Testimonial and
Documentary Evidence by the Defendants to prove the said Factual Issues
alleged therein.
FINALLY, the Defendants respectfully pray for such and other reliefs as
may be deemed just and equitable in the premises.”
4. Please
note that the Plaintiff’s OPPOSITION, supra,
dwelled only with respect to
the first pending motion, supra, that is, Defendants’:
“URGENT MOTION TO RECALL AND REVOKE THE
ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”.
5. It
will be noted that the Court, during the hearing held on xxx, had ordered the
Plaintiff to file its Oppositions to
all the pending four (4) motions of the Defendants.
6. The
Defendants deny the theory of the Plaintiff that the Defendants’ pending “URGENT MOTION TO RECALL AND REVOKE THE
ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER” is
allegedly a disguised motion for
reconsideration.
6.1.
The subject matter of all of the foregoing
pending motions of the Defendants do
not refer to the validity or
merits of the past Preliminary Injunction Order issued by the Court
(which are proper subjects for a seasonable motion for reconsideration).
6.2.
Instead, the said pending motions of the
Defendants refer to the new purely
legal and new purely procedural issues of:
6.2.1.
UNENFORCEABILITY of the Preliminary Injunction
Order due to:
(a)
The lack of a Bond;
(b)
The vagueness of the legal nature of the past
TRO Cash Bond posted by the Plaintiff; and
(c)
The applicability of the past TRO Cash Bond to the subsequent Preliminary Injunction Order of the Court; - and
6.2.2.
The total absence of a formal Writ of Preliminary Injunction
that shall enforce the Preliminary Injunction Order as mandated by the Rule 58.
6.3.
All of the above new legal and procedural issues were not existing at the time of the issuance of the past
TRO and the subsequent Preliminary Injunction Order.
7. At
any rate, upon further inquiry with the Defendants, the undersigned Counsel has
learned that the Plaintiff had indeed posted a Cash Bond, but the same was posted only for purposes of the past Temporary
Restraining Order (TRO) issued by the Court.
7.1.
There is no
formal Order showing that the said TRO Cash Bond has been recognized by the Court as the
Plaintiff’s continuing Cash Bond in
support of the subsequent Preliminary Injunction ordered by the Court.
7.2.
As far as the Record goes, the said Cash Bond
was posted by the Plaintiff for purposes of the earlier 20-day TRO issued by
the Court.
7.2.1.
The legal
lifespan of the said TRO had long expired.
7.3.
The Record does not show that the Plaintiff has
filed a Manifestation/Motion seeking
recognition of the past TRO Cash Bond as its equivalent Cash Bond for
purposes of the subsequent Preliminary Injunction ordered by the Court.
7.4.
Nor is there an extant Order in the Record expressly
and specifically recognizing the past TRO Cash Bond as to constitute the new Preliminary Injunction Cash
Bond of the Plaintiff.
8. The
Defendants reiterate the following facts and issues for consideration by the
Court, as raised in all their Injunction-related pending motions, thus:
8.1.
Nothing in the Record shows that the Court has
issued a formal Writ of Preliminary Injunction to this very date.
8.1.1.
A Writ is mandatory to enforce
a Preliminary Injunction Order under Rule 58.
8.2.
The Order, dated xxx, in effect, remains on inactive
status (effectively on archived status) to this very date.
8.3.
For lack (or non-issuance) of a formal Writ of Preliminary Injunction,
the aforecited Order remains and ought to be deemed UNENFORCEABLE.
8.4.
For lack of (i.e., failure to post) the mandatory
Preliminary Injunction Bond (different and separate from a TRO Bond),
all the injunctive commands stated in the aforementioned Order against the
Defendants remain and ought to remain UNENFORCEABLE.
8.5.
The Plaintiff pursues the implementation of the
of Preliminary Injunction Order, despite its non-enforceability:
8.5.1.
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. (xxx) in actual
control of the xxx Water Co., Inc. - affiliated
water system, water facilities, and water connections serving the homeowners of
the said village;
8.5.2. 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.
8.5.3. To ignore the fact that the xxx board resolution granting to the Plaintiff the power to operate the water system, facilities, and connections of
the village had been REVOKED in xxx by
the xxx
Board composed of the Defendants as Directors and Officers, which
the General Membership had subsequently ratified.
8.5.4. 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.
9.
At any rate, the Defendants have invoked and
hereby continue to invoke their right to post a COUNTERBOND in their aforecited
pending motions for the purpose of lifting the Preliminary Injunction Order.
9.1.
This is a factual issue that would require evidence
presentation by the Defendants.
9.2.
The Defendants, in their aforecited pending
motions, have invoked their right to present evidence to prove
compliance with Sec. 6, Rule 68.
9.3.
They must
prove whether they are entitled to the lifting of the Preliminary Injunction
Order subject to the posting of a Counterbond as allowed by Sec. 6, Rule 58.
10. 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”.
11.
To protect the due process rights of the
Defendants, they hereby reiterate
that they intent to present evidence to prove compliance with the foregoing
provision of Rule 58, that is:
(a)
That a preliminary injunction “x x x
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.”
(b)
That
“if it appears that the extent
of the preliminary injunction or restraining order granted is too great, it may be modified.”
WHEREFORE, it is respectfully prayed
that all of the pending motions of the Defendants enumerated in Paragraphs
1, 2 and 3 of this Reply, supra, be GRANTED en toto as prayed for in the said pending motions, subject to the qualifying prayer stated in
the following paragraph, infra.
FURTHER, the Defendants respectfully
pray that the issue of :
(a) whether
to recall of the Preliminary Injunction Order and
(b) whether
to allow the Defendants to post a COUNTERBOND
in order to lift the Preliminary Injunction be DEFERRED by the Court until
such time that the Defendants shall have completed their evidence presentation
to prove their compliance with substantive
and procedural requirements of Sec. 6, Rule 58, supra.
xxx, 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.”
