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.
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 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.
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, 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).
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.
X x x.”
