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 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.”
Atty. Manu