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 Secretary’s 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 an UNSIGNED 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 was expressly 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 the alleged 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 Xxx’s 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, 2015 and 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 petition she HAD NO LEGAL AUTHORITY to do so.
(k) There was a “huge antedated time gap of 35 days” between 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 7 expressly 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 ARE PROCEDURAL 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 questionable ON 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 RECORD which 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.
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 a fatal 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 EVIDENCE may be filed after termination of the presentation of evidence-in-chief of the plaintiff.
“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, is a failure to state a cause of action which 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).
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.”
“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.
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.
X x x.”