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Sample motion for reconsideration; special

affirmative defenses to dismiss a civil case


based on failure to state a cause of action,
unsigned pleading, lack of authority of
representative to commence the action,
defective board resolution.
Below is a sample motion for reconsideration, prepared by our law office, on the issues
of failure to state a cause of action (as against lack of cause of action), effects of an
unsigned pleading, special affirmative defenses, and dismissal of action without
prejudice, for legal research purposes of our readers.

x x x.

MOTION FOR RECONSIDERATION


OF THE ORDER, DATED MARCH 17, 2016

THE DEFENDANTS, by counsel, respectfully state:

1. PURPOSE. - The subject matter of this motion for partial reconsideration is


the Order, dated March 17, 2016, of the Honorable Court.

2. MATERIAL DATES. The undersigned counsel for the defendants personally received
a copy of the said Order in open court during the hearing held on March 18, 2016 at
8:30 AM. His 15th day to file this motion expires on April 2, 2016, Saturday. Hence,
his final legal deadline would expire on April 4, 2016, Monday, the next working
day, per the Rule of Court.

3. THE ORDER, DATED MARCH 17, 2016. - The Order denied the defendants motion
to dismiss, by way of special affirmative defenses alleged in their earlier supplemental
responsive pleading,without prejudice to the (said special affirmative defenses)
being raised and appreciated during the pretrial and trial.

The two (2) bases for the denial, as contained in the Order, are as follows:

(a) That the special affirmative defenses raised by the defendants are technicalities and
matters which are evidentiary in nature; and

(b) That they are best threshed out in the crucible of trial.
4. ISSUE. It will be recalled that in their SUPPLEMENTAL RESPONSIVE PLEADING
(In Compliance with Paragraph. 4 of the OMNIBUS ORDER, Dated October 20, 2015)
With EX PARTE MOTION TO SET A PRELIMINARY HEARING ON THE SPECIAL
AFFIRMATIVE DEFENSES, dated November 3, 2015, the defendants argued the
certain procedural, legal and antecedent issues, which are matters of record and
which are purely legal issues without need of evidence presentation.

This motion for partial reconsideration respectfully submits that the Honorable
Court erred in not dismissing the instant case for the following reasons:

(a) The instant petition lacks a valid verification and anti-forum shopping certification
for LACK OF AUTHORITY OF xxx to execute the same.

(b) The instant petition is tantamount to an UNSIGNED PLEADING, for lack of a valid
legal authority of XXX to institute the same in the form of a proper, valid and timely
Board Resolution of the corporate plaintiff.

(c) The instant petition is a mere scrap of paper that fails to comply with the full valid and
mandatory requirements to commence an INITIATORY PLEADING.

(d) One such basic and fundamental requirement is a proper and valid Board
Resolution of the corporate plaintiff that serves as the proper and valid legal
authority of XXX to commence the instant petition by signing the verification and
anti-forum shopping certification thereof.

(e) Hence, it fails to state a cause of action, for which reason, it must be dismissed.

(f) The foregoing issue/ground is a PURELY LEGAL ISSUE and a MATTER OF


RECORD that can be resolved by the Honorable Court by applying, at this early stage,
the relevant provisions of the Rules of Court and the relevant Jurisprudence.

(g) The foregoing issue/ground needs no evidence presentation for its disposal, the
same being a purely legal issue and a matter of record.

(h) The foregoing issue/ground need not wait for the pretrial stage of this case (as held
in the questioned Order) for its final disposal by this Honorable Court.

5. THE GLARING LACK OF LEGAL AUTHORITY OF XXX XXX TO EXECUTE THE


VERIFICATION AND ANTI-FORUM SHOPPING CERTIFICATION OF THE INSTANT
PETITION BY REASON OF THE PATENTLY QUESTIONABLE AND INVALID BOARD
RESOLUTION ATTACHED THERETO.

XXX, the alleged corporate secretary of the corporate plaintiff, has no legal
authority to execute the verification and anti-forum shopping certification in the
instant civil action and her act of executing the verification and anti-forum shopping
certification of the instant petition is ultra vires for the reasons reiterated hereinbelow:
(a) Par. 1 of Board Resolution No. 006-2015, dated April 17, 2015, of the board of
directors of the petitioner, which is attached to the instant petition as Annex
A thereof,speaks only of a CRIMINAL CASE, not a civil action.

(b) The specific powers granted to Xxx under Par. 2 of the board resolution do not
expressly include the power to execute verification and an anti-forum shopping
certification. The clause to sign any and all pleadings, papers and documents relative
thereto stated in Line No. 7 and Line No. 8 of Par. 2 of the board resolution does not
expressly refer to the power to execute verification and an anti-forum-shopping
certification.

(c) The phrase relative thereto contained in the aforecited clause (i.e., to sign any and
all pleadings, papers and documents relative thereto) expressly refers to the phrase
appropriate CRIMINAL CASE clearly stated in Par. 1 of the board resolution.

(d) The board resolution, which is not under oath, is not supported by a notarized
Corporate Secretarys Certificate to attest, under pain of perjury, to (a) the due
execution and authenticity thereof and (b) the veracity of the contents thereof.

(e) For lack of authority of Xxx to commence the instant civil action and/or for exercising
an ultra vires act of filing the instant civil action, and as explained in the foregoing
paragraphs, the petition may be deemed to be anUNSIGNED PLEADING. The rule is
that an unsigned pleading produces no legal effect (Sec. 3, Rule 7).

(f) FURTHER, and more importantly, the Court should note that Par. 1 the verification
and anti-forum shopping certification, dated March 13. 2015, executed by Xxx
wasexpressly an specifically based and premised on an alleged Board Resolution
No. 003-2015, dated March 12, 2015, as her alleged legal authority to execute the
verification and anti-forum shopping certification and to commence the instant civil
action.

(g) She alleges in her said verification and anti-forum shopping certification, dated
March 13. 2015, that thealleged Board Resolution No. 003-2015, dated March 12,
2015, was attached as Annex A to the instant petition. It was not so.

(h) The document that is attached as Annex A of the instant petition is not the
alleged Board Resolution No. 003-2015, dated March 12, 2015 mentioned in Xxxs
signed verification and anti-forum shopping certification, dated March 13. 2015, but
another and unrelated alleged Board Resolution No. 006-2015, dated April 17,
2015.

(i) Please note, further, that the verification and anti-forum shopping certification signed
by Xxx is dated March 13, 2015. But the alleged Board Resolution No. 006-2015,
dated April 17, 2015, attached as Annex A of the petition is not dated March 13,
2015 but April 17, 2015and does not refer to the instant civil action but to a criminal
action.
(j) Hence, at the time Xxx actually executed on March 13, 2015, under oath and under
pain of perjury, the verification and anti-forum shopping certification of the instant
petitionshe HAD NO LEGAL AUTHORITY to do so.

(k) There was a huge antedated time gap of 35 daysbetween the date Xxx signed the
verification and anti-forum shopping certification which is March 13, 2015 and the date
of the board resolution (which purports to be her legal authority) marked as Annex A
of the petition which is April 17, 2015.

(l) In addition to the rule that an unsigned pleading produces no legal effect (Sec. 3,
Rule 7), Sec. 5, Rule 7expressly provides that the failure of a petitioner to comply with
the requirements for a valid, legal and proper verification and anti-forum shopping
certification for an initiatory pleading shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and after hearing.

(m) Under Sec. 1 (g), Rule 16, a petition may be dismissed if it fails to state a cause of
action. An unsigned pleading (for lack of authority of Xxx to execute the
verification and anti-forum shopping certification) is mere scrap of paper because it
fails to state a cause of action.

(n) To repeat: Xxx signed the verification and anti-forum shopping certification of the
instant petition on March 13, 2015 while the board resolution (Annex A thereof)
allegedly empowering her to commence a criminal action (not a civil action)
against the herein respondents was dated April 17, 2015 - or a gap of thirty-five (35)
days or five (5) weeks. The obvious legal conclusion is that at that time that Xxx
allegedly signed the verification and anti-forum shopping certification of the petition
on March 13, 2015 she had no legal authority do so, considering that the board
resolution which allegedly served as her legal authority was passed by the
illegitimate Maca board only much later on April 17, 2015.

6. THE ISSUES OF FAILURE OT STATE A CAUSE OF ACTION AND THE LACK OF


AUTHORITY OF XXX AREPROCEDURAL ANTECENDENTS THAT MUST FIRST BE
RESOLVED WITH TOP PRIORITY, PREFERENCE AND UTMOST DISPATCH
BEFORE THE PRETRIAL AND TRIAL STAGES OF THIS CASE.

It must be noted that his motion is premised on FAILURE TO STATE A CAUSE OF


ACTION (not lack of cause of action) and the LACK OF AUTHORITY of XXX to
commence this action because the Board Resolution attached as Annex A to the
instant petition is improper, invalid, dubious, and questionableON ITS FACE.

The issues of failure to state a cause of action and the lack of legal authority of
XXX by reason of an improper and invalid Board Resolution (i.e., Annex A, Petition)
are MATTERS OF RECORDwhich can be resolved by simply analyzing Annex A of
the instant petition.
The issues of failure to state a cause of action and lack of legal authority are
PURELY LEGAL ISSUES.

They require NO EVIDENCE PRESENTATION.

All that is needed is to analyze the Board Resolution (Annex A) in question.

They are NOT MATTERS OF EVIDENCE THAT MUST BE TRIED ON THE MERITS IN
A PROTRACTED, TEDIOUS, COSTLY, PROLONGED, AND PAINFUL TRIAL ON THE
MERITS AND APPELLATE REVIEWS OF THIS CASE.

They may be and must be resolved PRIOR TO THE PRETRIAL AND TRIAL STAGES
of the instant case for the sake of procedural orderliness and the doctrine of speedy
justice WITHOUT WAITING FOR ANY FURTHER DILATORY PROCEEDING.

They are PROCEDURAL ANTECEDENTS that must be given top priority for resolution
of the Court before pretrial and trial stages of the case if judicial orderliness is to be
preserved and if fidelity to Rule 16 is to be observed.

7. JURISPRUDENCE.

A. FAILURE TO STATE CAUSE OF ACTION VS. LACK OF CAUSE OF ACTION.

The defendants respectfully cite the 2011 decision of the Supreme Court in the case
of DOLORES ADORA MACASLANG vs. RENATO AND MELBA ZAMORA, G.R. No.
156375, May 30, 2011.

In the said case, the Supreme Court held that failure to state a cause of action and
lack of cause of action are really different from each other.

Failure to state a cause of action refers to the insufficiency of the


pleading, and is a ground for dismissal under Rule 16 of the Rules of Court.

The herein defendants submit that it does not need to wait for pretrial or for trial
on the merits.

The herein defendants submit that the lack of a proper and valid Board
Resolution authorizing XXX to commence the civil action is means insufficiency of
the pleading.

Its legal effect is the failure to state a cause of action.

The herein defendants submit that the pleading so filed with such afatal defect is
an unsigned pleading and hence, a mere scrap of paper, as discussed in the
foregoing sections above.
On the other hand, according to the aforecited Supreme Court in the aforecited
decision, lack of cause action refers to a situation where the evidence does not
prove the cause of action alleged in the pleading.

It needs trial on the merits because a DEMURRER TO EVIDENCEmay be filed after


termination of the presentation of evidence-in-chief of the plaintiff.

THUS:

x x x.

Failure to state a cause of action and lack of cause of action are really different
from each other. On the one hand, failure to state a cause of action refers to the
insufficiency of the pleading, and is a ground for dismissal under Rule 16 of
the Rules of Court. On the other hand, lack of cause action refers to a situation
where the evidence does not prove the cause of action alleged in the pleading.
Justice Regalado, a recognized commentator on remedial law, has explained the
distinction:

xxx What is contemplated, therefore, isa failure to state a cause of actionwhich is


provided in Sec. 1(g) of Rule 16. This is a matter of insufficiency of
the pleading. Sec. 5 of Rule 10, which was also included as the last mode for raising
the issue to the court, refers to the situation where the evidence does not prove a
cause of action. This is, therefore, a matter of insufficiency of evidence. Failure to
state a cause of action is different from failure to prove a cause of action. The
remedy in the first is to move for dismissal of the pleading, while the remedy in the
second is to demur to the evidence, hence reference to Sec. 5 of Rule 10 has been
eliminated in this section. The procedure would consequently be to require the pleading
to state a cause of action, by timely objection to its deficiency; or, at the trial, to file
a demurrer to evidence, if such motion is warranted. (Emphasis added).

X x x. (Emphasis added).
UNSIGNED PLEADING.

On the legal issue of USIGNED PLEADINGS, the herein defendants respectfully cite
the case of REPUBLIC OF THE PHILIPPINES, represented by the Land
Registration Authority vs. KENRICK DEVELOPMENT CORPORATION, G.R. No.
149576, August 8, 2006.

In the aforecited case, the Supreme Court held that an unsigned pleading is
invalid and it produces no legal effect.

Thus, it must be DISMISSED outright via a motion to dismiss or as a special


affirmative defense.

It further held that procedural requirements (which have often been


disparagingly labeled as mere technicalities) have their own valid raison d'etre in
the orderly administration of justice.
It furthermore held that to summarily brush such procedural requirements or
technicalities may result in arbitrariness and injustice.

THUS:
X x x.

No doubt, Atty. Garlitos could not have validly given blanket authority for just
anyone to sign the answer. The trial court correctly ruled that respondents answer
was invalid and of no legal effect as it was an unsigned pleading. Respondent was
properly declared in default and the Republic was rightly allowed to present evidence ex
parte.

Respondent insists on the liberal application of the rules. It maintains that even if
it were true that its answer was supposedly an unsigned pleading, the defect was a
mere technicality that could be set aside.

Procedural requirements which have often been disparagingly labeled as


mere technicalities have their own valid raison d'etre in the orderly administration
of justice. To summarily brush them aside may result in arbitrariness and
injustice.

The Courts pronouncement in Garbo v. Court of Appeals is relevant:

Procedural rules are [tools] designed to facilitate the adjudication of cases.


Courts and litigants alike are thus [enjoined] to abide strictly by the rules. And while the
Court, in some instances, allows a relaxation in the application of the rules, this, we
stress, was never intended to forge a bastion for erring litigants to violate the rules with
impunity. The liberality in the interpretation and application of the rules applies only in
proper cases and under justifiable causes and circumstances. While it is true that
litigation is not a game of technicalities, it is equally true that every case must be
prosecuted in accordance with the prescribed procedure to insure an orderly and
speedy administration of justice.

X x x.

8. RELIEF.

WHEREFORE, premises considered, it is respectfully prayed that the ORDER,


dated March 17, 2016, be partially reconsidered:

(a) By declaring the fatal defect and/or absence of the legal authority of Xxx Xxx
to commence the instant action in behalf of the corporate plaintiff;

(b) By declaring that the petition fails to state a cause of action; and

(c) By declaring the instant petition is an unsigned pleading without any legal
and valid effect.
AND THAT ON THE BASIS OF THE FOREGOING, the instant petition be
DIMSISSED outright without prejudice, per Rule 16.

FURTHER, the herein defendants pray for such and other reliefs as may be
deemed just and equitable in the premises.

Las Pinas City, March 30, 2016.