BONIFACIO CONSTRUCTION MANAGEMENT CORPORATION, PETITIONER, VS. THE HON. ESTELA PERLAS-BERNABE, IN HER OFFICIAL CAPACITY AS PRESIDING JUDGE OF THE RTC OF MAKATI, BRANCH 142, AND …

Bonifacio Construction Management Corporation versus Perlas-Bernabe

The Case

This is a petition for review on certiorari brought by Bonifacio Construction Management Corporation against the presiding judge of the Regional Trial Court of Makati, Branch 142, and a private respondent, a doctor of medicine who sued the corporation for damages. The doctor claimed that the construction of a flyover beside his clinic drove away his patients and clients. The corporation, instead of answering and going to trial, repeatedly sought to have the complaint dismissed, and when it failed, it came up to the Supreme Court. The case matters because it fixes the remedy against an order denying a motion to dismiss: such an order is merely interlocutory, and the proper recourse is to answer, proceed to trial, and appeal only after judgment.

Procedural History

The private respondent filed a complaint for damages with the Regional Trial Court of Makati, Branch 142. The corporation moved to dismiss on the ground of lack of cause of action and for failure to implead the State as a co-defendant. The trial court denied the motion and required the corporation to file an answer. Instead of answering, the corporation filed an urgent omnibus motion for reconsideration, which the trial court also denied, giving it ten days to answer. The corporation then filed its answer. Afterwards, it filed a second motion to dismiss, this time alleging failure to implead the contractor as an indispensable party. The trial court denied this second motion, and denied reconsideration as well.

Aggrieved, the corporation filed with the Court of Appeals a petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Court, alleging grave abuse of discretion amounting to lack or excess of jurisdiction. The Court of Appeals dismissed the petition, and denied the corporation's motion for reconsideration. Hence, this petition for review on certiorari before the Supreme Court.

Facts

Bonifacio Construction Management Corporation was in charge of the Fort Bonifacio-Kalayaan-Buendia Flyover Project II. The private respondent, Gary Cruz, was a doctor of medicine with a medical clinic and industrial service office along Kalayaan Avenue in Makati City. On January 5, 1998, construction of the flyover commenced. Business establishments near the site, including the doctor's clinic, were affected. His patients and clients stopped visiting for fear of welding flames from the construction, and they could no longer park their vehicles near the clinic.

On September 25, 1998, the doctor filed a complaint with the Office of the Barangay Chairman of Pinagkaisahan, Makati City. The barangay chairman, in letters dated October 2 and 8, 1998, advised the corporation to take appropriate action, but the letters were unheeded. On November 17, 1998, the doctor sent the corporation a letter demanding payment of 2,000 pesos a day for loss of income due to the construction. The corporation refused to pay.

This prompted the doctor to file a complaint for damages with the Regional Trial Court of Makati, Branch 142. The corporation moved to dismiss, and the procedural skirmish that followed led all the way to the Supreme Court.

Issues

• Whether or not a petition for certiorari and prohibition is the proper remedy to assail the denial by the trial court of a motion to dismiss.
• Whether or not the trial court committed grave abuse of discretion in denying the corporation's second motion to dismiss.
• Whether or not a second motion to dismiss, filed after an answer had already been filed, is sanctioned by the Rules of Court.
• Whether or not the failure to implead an alleged indispensable party is a ground for dismissal of the action.

Applicable Provisions

Section 1 of Rule 16 of the 1997 Rules of Civil Procedure provides:

Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds.

This fixes the period within which a motion to dismiss may be filed, and the corporation filed its second motion only after it had already answered.

Section 11 of Rule 3 of the 1997 Rules of Civil Procedure provides:

Neither misjoinder nor joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just.

This forecloses the corporation's argument that the complaint should be dismissed for failure to implead the contractor as an indispensable party.

Ruling

On the first issue, the Court held that the petition for certiorari and prohibition was not the proper remedy. The order denying a motion to dismiss is merely interlocutory. An interlocutory order does not terminate nor finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. It is always under the control of the court and may be modified or rescinded upon sufficient grounds shown at any time before final judgment. The Court quoted its ruling in Indiana Aerospace University versus Commission on Higher Education:

An order denying a motion to dismiss is interlocutory, and so the proper remedy in such a case is to appeal after a decision has been rendered. A writ of certiorari is not intended to correct every controversial interlocutory ruling: It is resorted only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction.

On the second issue, even assuming certiorari was proper, the Court found no grave abuse of discretion. Grave abuse of discretion means a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, and mere abuse of discretion is not enough. The trial court acted judiciously and with clear observance of due process.

On the third issue, the Court held that the second motion to dismiss, filed more than a month after the corporation had filed its answer, was not sanctioned by the Rules. Under Section 1 of Rule 16, a motion to dismiss must be made within the time for but before filing the answer. A motion to dismiss may not therefore be made after an answer had already been filed.

On the fourth issue, the Court held that even granting that the contractor was an indispensable party, Section 11 of Rule 3 provides that neither misjoinder nor joinder of parties is a ground for dismissal. Moreover, by its motion, the corporation was dictating to the private respondent whom to select as defendant, which is contrary to the ruling in Bank of America versus the Court of Appeals, that none of the defendants has the right to compel the plaintiff to prosecute the action against a party if he does not wish to do so.

Doctrine

An order denying a motion to dismiss is interlocutory and is not the proper subject of a petition for certiorari. The remedy of a defendant whose motion to dismiss is denied is to file an answer, proceed to trial, and await judgment, and if the judgment is adverse, to appeal. Certiorari lies only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction, not to correct every erroneous interlocutory ruling.

A motion to dismiss must be filed within the time for but before filing the answer, and a second motion to dismiss filed after an answer has been filed is procedurally improper. Finally, neither misjoinder nor joinder of parties is a ground for dismissal of an action, and a defendant cannot compel the plaintiff to implead a party the plaintiff does not wish to sue.

Disposition

The petition was denied, with costs against the corporation, and the decision of the Court of Appeals was sustained.

Remember This

Memorize the line that an order denying a motion to dismiss is merely interlocutory, so the remedy is to answer, proceed to trial, and appeal after judgment, not to file certiorari. Examiners use this case to test the proper remedy against interlocutory orders and the procedural limits on motions to dismiss under the Rules of Court.