Republic of the Philippines

1st JUDICIAL REGION

Regional Trial Court
Branch 123
Bangued, Abra

ADRIAN GAMS, Civil Case No. 321

Plaintiff FOR: COLLECTION FOR A
SUM OF MONEY WITH
DAMAGES
-versus-

JEFFREY SUPS,
Defendant
x------------------x

MOTION FOR RECONSIDERATION

OF THE ORDER, DATED MARCH 17, 2016

THE DEFENDANT, 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 15 th 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.

Bangued, Abra, March 30, 2016