REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
Branch ___
Makati City

BERHNARD KNESS,
Petitioner;

- versus - SP. CIVIL CASE No.__________

For: PRELIMINARY
MANDATORY INJUNCTION
and/or ISSUANCE OF A TRO
WITH DAMAGES

GRAMERCY RESIDENCES
CONDOMINIUM CORP. as
being Managed by the
CENTURY PROPERTIES
MANAGEMENT, INC.,
represented by its General
Manager Joseph N. Bactol;
Defendants.
x-----------------------------------------x

PETITION
PETITIONER, through the undersigned counsel and unto this
Honorable Court most respectfully files this Petition and in support
hereof further avers that:

NATURE OF THE CASE

This is a Petition for Preliminary Mandatory under Rule 58 of

the Revised Rules of Court filed by the herein petitioner against the
defendants for the former to get his personal belongings left inside
the condo Unit Number 4816 of the Gramercy Residences located at
Salamanca Street corner Kalayaan Avenue in Makati City.

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 JURISDICTION OF THE COURT

Under Section 2 of Rule 58 of the Revised Rules of Court, a

preliminary injunction may be granted by the court where the action is
pending. Corollary, the rule on venue of personal actions under
Section 2, Rule 4 of the Revised Rules of Court provides that an
action may be commenced and tried where the plaintiff resides or
where the defendant(s) resides at the election of the plaintiff. Since
the petitioner temporarily resides at the aforementioned condo unit in
Makati City and the fact that the defendant corporations’ business
addresses are also located in Makati City, jurisdiction over the subject
matter and the persons of the parties definitely falls under the
jurisdiction of the Honorable Court.

Hence, this Honorable Court has jurisdiction over the subject

matter of the case.

PARTIES

Petitioner Berhnard Kness, is of legal age, American Citizen

and a temporary resident of Unit Number 4816 of the Gramercy
Residences located at Salamanca Street corner Kalayaan Avenue,
Barangay Poblacion, Makati City or may be served with summons,
notices and other court processes through his counsel at Bayaua Law
Office, 3rd F/ Gonzales Bldg., 1888 Orense St., Gudalupe Nuevo,
Makati City.

While defendants GRAMERCY RESIDENCES

CONDOMINIOM CORP. as being Managed by the CENTURY
PROPERTIES MANAGEMENT, INC., are domestic corporations duly
created, organized and existing under Philippine Laws, with business
address at Gramercy Residences, Salamanca Street corner
Kalayaan Avenue, Barangay Poblacion, Makati City, where they may
also be served with summons, notices, orders and other processes of
this Honorable Court.

THE FACTS OF THE CASE

Sometime 2014 or January 2015?, herein petitioner leased the

subject premises Unit Number 4816 of the Gramercy Residences.

On 18 August 2015, petitioner received a Final Demand Letter

dated 24 August 2015 from the Divina Law Firm stating therein that
he has violations of house rules and regulations of the condominium.

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Quoted hereunder is the pertinent portion of the said demand letter,
to wit:

“xx xx xx.

As you may be aware, you have violated the Rules at

least six (6) times for the period covering 3 March 2015 until 18
July 2015, by disrespecting the security personnel, carrying a
firearm in full battle gear, and creating commotions at
common areas of The Gramercy Residences. Copies of the
Notice of Violation are attached herewith as Annex “A”.
Pursuant to the Corporation’s Schedule of Penalties for
Violations, your infractions are punishable by fines totaling
One Hundred Thousand Pesos (P100,000.00), the breakdown
of which is attached herewith as Annex “B”.

xx xx xx.

To bolster this claim, copies of the said final demand letter and
its attached documents are hereto incorporated and attached
herewith as ANNEXES A, and A-1 to A-7, respectively.

After receipt of the said demand from the respondents,

petitioner went outside the condominiums to undertake some of his
activities and to meet some of his colleagues. When he came back to
The Gramercy Residences, he was startled and surprised that his
proximity card access to his rented unit was already deactivated. He
went to the office of the administration/management of the
condominium to complain. However, his pleas were unheeded and
fell on deaf and adamant ears.

Petitioner then consulted a lawyer. The undersigned counsel

herein made a Reply Letter dated 18 September 2015 to the Divina
Law Firm contending therein that based on the allegations of
violations of pertinent house rules and regulations in the demand
letter, the penalties, granting but without admitting, should only be for
the total amount of thirty thousand pesos only (P30,000.00).Pertinent
portion of the said reply letter is hereto quoted, to wit:

“xx xx xx.

In view thereof, our client is willing to pay the amount

of THIRTY THOUSAND PESOS (P30,000.00) ONLY for peace of
mind. Furthermore, our client be allowed to get his personal
belongings left inside the condo unit of Unit Number 4816

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 even with the presence of the security guard and he promise
not to create any problem anymore.

xx xx xx.”

To bolster this claim, an original copy of the said reply letter is

hereto attached as ANNEX “B”.

CAUSE OF ACTION

It is basic that in order for a restraining order or the writ of

injunction to issue, the petitioner is tasked to establish and
convincingly show the following:

(1) Right in esse or a clear and unmistakable right to

be protected;

(2) A violation of that right;

(3) There is an urgent and permanent act and urgent

necessity for the writ to prevent serious damage. 1

It is clear from the facts and circumstances of the present case

that herein petitioner has a right to recover his personal belongings
(airsoft articles, clothings, passports, monies and other documents) in
Unit No. 4816. He has a right to re-possess his personal properties
inside the closed Unit No. 4816 being the owner thereof. In the case
of Borromeo vs. Court of Appeals,2 no less than the Honorable
Supreme Court gave us the twin requirements of a valid injunction, to
wit:

“xxx The twin requirements of a valid injunction

are the existence of a right and its actual or
threatened violations.”

In the present case, there is no doubt that herein petitioner has

a vested legal right with respect to the subject personal properties.
Being the lawful owner, petitioner has a vested legal right to stop and

1
Samahan ng Masang Pilipino sa Makati, (SMPMI) vs Bases Conversion Development Authority (BCDA),
513 SCRA 88; Marquez vs Presiding Judge (HO. Ismael B. Sanchez), RTC Br. 58, Lucena City, 515 SCRA
577; Republic vs Caguioa, 536 SCRA 193;
2
550 SCRA 269;

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refrain the defendants in prolonging to restrain him to get the said
personal properties.

Worth noting that he had been denied access to his rented Unit
4816 without due process of law. He was not duly notified about the
alleged violations as stated in the demand letter. Also, the attached
notices of his alleged violations of the rules and regulations of the
condominium corporation as allegedly committed on 03 March 2015
to 18 July 2015 were not signed by the authorized signatories of the
defendants EXCEPT that violation allegedly committed on 03 July
2015. Hence, there is indeed a denial of due process committed
against petitioner.

Quite clearly, there is the need for an urgent act and necessity
for the issuance of the required writ of mandatory injunction against
the defendants to prevent serious damage on the part of the
petitioner.

Hence, from the foregoing facts and circumstances, the three

(3) elements and/or requisites as cited above for the issuance of the
writ of mandatory injunction are all present in the present petition.

URGENCY FOR THE ISSUANCE OF

THE WRIT OF PRELIMINARY MANDATORY INJUNCTION
AND/OR TEMPRARY RESTRAINING ORDER

Petitioner is without any plain, speedy and adequate remedies

in the ordinary course of law other than this instant petition for
preliminary mandatory injunction and/or temporary restraining order
in the light of the determined efforts of the defendants to get and/or
exploit the personal belongings as left in the subject leased condo
unit. This would certainly create possible unrest of the very existence
of the rights of the petitioner. One of his personal belongings is his
American passport which matters his stay in the Philippines. He is of
the humble view that the same might be lost or get stolen from the
subject condo unit. The loss of which may create him possible
problems in the future.

With all due respect, the resultant grave harm and irreparable
injury would be inflicted on the petitioner which would cause unrest
on the very existence of the petitioner as a person unless this
Honorable Court of exercises its coercive power and direct the
defendant corporations and/or any person acting in their behalf to

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allow him to get his personal properties inside the subject Unit 4816
of the Gramercy Residences.

With the kind indulgence of the Honorable Court, pending the

determination of the humble petition, a PRELIMINARY MANDATORY
INJUNCTION and/or TEMPORARY RESTRAINING ORDER is
prayed for by the herein petitioner to be issued against the
defendant corporations and/or any person acting in their behalf allow
petitioner to get his personal properties in the subject leased
premises.

That herein petitioner has posted a reasonable bond in the

amount of ____________ as required by this Honorable Court to
answer for any damage that the defendant corporations may suffer if
any. Copy of the said bond is hereto attached as ANNEX “C”.

That is the humble view of the petitioner that if no

PRELIMINARY MANDATORY INJUNCTION and/or TEMPORARY
RESTRAINING ORDER be issued by this Honorable Court, the
herein petitioner will suffer grave injustice and irreparable damage.

PRAYER

WHEREFORE, foregoing premises considered, it is most

respectfully prayed unto this Honorable Court to issue a Preliminary
Mandatory Injunction and/or Temporary Restraining Order (TRO)
directing defendant corporations the immediate release of the
personal properties of the petitioner from the subject condo Unit No.
4816 in the interest of urgency and to avoid grave injustice and
irreparable damage to herein petitioner.

Plaintiff also prays for other reliefs and/or remedies just and
equitable under the premises.

Makati City.

September 21, 2015.

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 BAYAUA AND ASSOCIATES LAW OFFICES
Counsel for the Petitioner
3 F. Gonzalez Bldg., 1888 Orense St.,
rd

Guadalupe Nuevo, Makati City

Tel Nos: (02) 750-4439 / (02) 881-7629

BY:

ATTY. JORICO FAVOR BAYAUA

IBP Lifetime No. 09572 / 01-13-11
PTR No. 4759324 /01-09-15/ Makati City
Roll No. 47842
MCLE No. IV-0009973
December 5, 2012

TO THE HON. CLERK

OFFICE OF THE CLERK OF COURT
REGIONAL TRIAL COURT
Makati City

Gramercy Residences Condominium Corporation,

Century Properties Management, Inc.;
Joseph N. Bactol
Defendants
The Gramercy Residences
Kalayan Avenue, Brgy. Poblacion
Makati City

The DIVINA LAW Firm

Counsel for the Defendants
8th Floor Pacific Star

Greetings!

Please be notified that foregoing petition will be submitted to the Honorable

Court for its consideration and approval on October _______, 2015 at 8:30 in the
morning.

JORICO FAVOR BAYAUA

EXPLANATION

The foregoing petition is served to all parties through registered mail due
to distance and lack of manpower to effect personal service.

JORICO FAVOR BAYAUA