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Republic of the Philippines

National Capital Judicial Region


REGIONAL TRIAL COURT
Branch 60 – City of Makati

Wind Residences Condominium


Corporation represented by
Mandalin G. Javier,
Plaintiffs,

- versus - Civil Case No. 17-10293

SOS JB Property Management


Corporation, Jennifer Sosa, Julian
G. Bay, Jemelle Felipe S. Pastor and
Kristina Felix M. Sosa Cayetano,
Defendants.
x-----------------------------------------------------------x

comment and opposition


(to the amended complaint)

Come now Defendants, by counsel and unto this Honorable


Court most fervently file this comment and opposition, and in
support hereof, fervently aver the following:

1. For the record, this comment and opposition hinge on the


amended complaint filed by Plaintiff last 10 April 2019. For the
record, sans the Order of the honorable Court allowing the filing
amended complaint, plaintiff submitted and filed said pleading
which basically had the effect of substantial modification in its
argument. In this regard, defendants fervently posit that –

Plaintiff’s amended complaint


Basically, had the effect of
Unnecessarily delaying the
Proceedings before this
Honorable court.
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2. With all humility, defendants recognize the significant role


played by Courts in deciding Intra-Corporate Disputes 1
particularly, in giving ample leeway to amicably settle existing
disputes among members. Suffice to state that this important
role of Courts in settling such type of dispute/s is more than
recognized by defendants in that it has immediately undertaken
steps as a preparatory act to the General Assembly, i.e., as and
by way of its compliance to the Court’s directive as contained in
its Order of January 24, 2018.

3. Yet while defendants are more than willing to and had


already commenced the performance of acts as indicative of its
faithful compliance unto the Court’s ORDER, it is also
noteworthy to state that the consequential effects of such would
have the effect of settling, nay deciding the whole and pending
incident, that is, whether or not the Board of the Corporation
had committed and is guilty of ultra vires acts. And it is
precisely for this main reason why defendants are constrained
to file and submit this motion ad cautelam, particularly, as a
means of preserving its legal rights and interests in the instant
action.

Regardless of the decision


Of the general membership
On the issue of installation
Or non-installation Of
canopies, defendants posit
That such a situation is
tantamount to a judicial
admission and undeniably
prejudicial to its rights
and interests in this action.

4. Underscoring, while defendants fully appreciate the


significance of the Court’s ORDER of 24 January 2018, albeit, the
consequential result thereof, whether the general membership
affirms or denies the incident involving the installation or non-
installation of the canopies, such would undeniably “pre-judge”
the merits of the instant case, to say the least! Stated

1 INTRA-CORPORATE RULES & REGULATIONS, Article Section.


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otherwise, regardless of the decision of the general


membership, such would have the unarguable effect of
prejudicing the legitimate rights and interests of the Boar of the
Corporation, no more no less.

5. The same stance is averred even in the aspect of an


affirmative vote and/or decision of the members, particularly on
the allowance, assuming such has been decided, of the design,
materials and slope, of the construction of canopies. Short of
being repetitious on the matter, this is especially so since the
main incident in this action hinge on the character of the act of
the defendant Board, that is, whether the questioned act of
destruction of the illegally built canopy is an ultra vires act or
not.

GIVEN THE PREDICAMENT OF


DEFENDANTS SIMULTANEOUS
WITH ITS DESIRE TO COMPLY
WITH THE Court’s directive,
It is humbly moved that an
Order nun pro tunc be
Issued, i.e., in the spirit of
Fairness and equity.

6. All said and in lieu of the undeniable consequential effects


of
the directive as arising from the ORDER of January 24, 2018,
specifically, the impending prejudice and detriment to
defendants’ rights and interests vis-à-vis the present action, it is
humbly moved that an Order nun pro tunc be issued by the
honorable Court, if only to safeguard defendants’ rights.

7. Emphasizing the need of an Order nun pro tunc, the Order


of
January 24, 2018 should be tempered with another Order
containing (among others), (1) a directive that regardless of the
result and/or outcome of the decision of the General Assembly
on the allowance and disallowance of the canopies, such should
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not as it should not be considered as a judicial admission on the


part of the defendants; (2) a directive that regardless of the
result of the decision of the Members, such shall not as it should
not form part of the records of the instant action; and finally, (3)
a directive that any decision of the Members shall be enforced
and applied not prospectively. Fervently, this Order nun pro
tunc containing the aforementioned directives would be
consistent with the highest interest of Substantial Justice and in
accord with fairness and equity, to say the least.

8. Finally and with the indulgence of this honorable Court,


defendants candidly aver that pursuing the directive of this
honorable Court particularly, its ORDER of January 24, 2018,
wanting of the above-mentioned and fervently prayed issuance
of an Order nun pro tunc, would inevitably result to great and
irreparable injustice to defendants’ legitimate rights and
interests a propos the instant action.

9. This motion ad cautelam is sought for by defendants as


a means of protecting its rights and interests and employed
neither as a dilatory tactic nor to make a mockery of the
proceedings hereto.

PrAYER
WHEREFORE, all premises being considered, in the highest
interest of substantial justice and fair play, it is most fervently
PRAYED that this motion ad cautelam be GRANTED and an
Order nun pro tunc be issued directing that –

i. Any decision by the mass membership of the


Corporation shall not be considered a judicial
admission on the part of the defendants;
ii. Any decision by the mass membership of the
Corporation shall not form part of the records
of the instant action; and
iii. Any decision by the mass membership of the
Corporation shall be applied and enforced NOT
prospectively.

Relief as are just and equitable under the premises are


likewise fervently prayed for.
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Quezon City (for the City of Batangas), 19 February 2018.

Atty. AMADO GUERRERO


Counsel for Movant

NOTice

The Clerk of Court


Branch 2- Regional Trial Court
Batangas City

Greetings!

Please take note that the foregoing motion ad


cautelam shall be submitted for oral arguments and
consideration of the honorable Court on _____ March 2018, at
____a.m./p.m. Thank you.

EXPLANATION ON THE
MODE OF SERVICE

The foregoing Motion Ad Cautelam had been served to the


plaintiff’s counsel via registered mail in lieu of the time and
personnel constraints involved herein.
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Verification and certification ON


Non-forum shopping

We, _________, the named defendants in the above-netitled


case, on oath, aver the following:

1. We are the Movants in the instant case;

2. We had caused the preparation of the foregoing Motion Ad


Cautelam;

3. We have read and understood this motion and all the


contents hereof are true and correct and of our own
personal knowledge and on the basis of authentic records
in our possession;

4. We have not commenced any other action or proceeding


involving the same issues, parties and subject matter
before another Court of equal jurisdiction, the Court of
Appeals, or any of its Divisions, the most Honorable
Supreme Court, or any other Court, Tribunal, or
Governmental Agency; and

5. Should we thereafter learn that a similar action or


proceeding has been filed and pending before the aforesaid
Courts, Tribunal or Agency, we undertake to report such
fact and state the status thereof within five[5] days from
notice thereof before this honorable Court, or where the
original action is filed and pending.

In witness whereof, we have hereunto affixed my signature


this ___th day of February 2018.

Affiant Affiant

SUBSCRIBED AND SWORN to before me this ___ th day of February


2018, affiant exhibiting his LTO Drivers’ License No. N02-83-356623 issued
at the LTO Main Office last January 28, 2016.
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REPUBLIC OF THE PHILIPPINES )


MAKATI CITY ) S.S.

Affidavit of service

I, of legal age, married and with postal address at Quezon


City, on oath, avers the following:

1. I am a Staff of the Movant-Defendants in the case entitled


Sps. AGUILAR vs. AMARA EN TERRAZAS CONDOMINIUM
CORPORATION, et. al., docketed as Civil Case No. 17-
10293, and currently pending before the Regional Trial
Court Branch 2-Batangas City;

2. On ___ February 2018, I had caused and effected the


service of copies of this Motion Ad Cautelam by registered
mail to:

 Atty. RACQUEL C. MALICLIC


Counsel for Plaintiffs
No. 282 Palico III Under Reg. Receipt No.
4103 Imus, Province of Cavite

In witness whereof, I have hereunto affixed my signature this


___th day of February 2018.

Affiant

SUBSCRIBED AND SWORN to before me this ___ th day of February


2018, affiant exhibiting his LTO Drivers’ License No. N02-83-356623 issued
at the LTO Main Office last January 28, 2016.