G.R. No. 148174.

 June 30, 2005.*

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 Gary Cruz, respondents.
Remedial Law;  Actions;  Motions to Dismiss;  Certiorari; The petition for certiorari and prohibition
filed by petitioner with the Court of Appeals is not the proper remedy to assail the denial by the trial court
of its motion to dismiss.—The petition for certiorari and prohibition filed by petitioner with the Court of
Appeals is not the proper remedy to assail the denial by the trial court of its motion to dismiss. The Order
of the trial court denying the 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 
_______________

 THIRD DIVISION.
*

393
VOL. 462, JUNE 30, 2005  393 
Bonifacio Construction Management Corporation vs. Perlas-
Bernabe
under the control of the court and may be modified or rescinded upon sufficient grounds shown at
any time before final judgment. This proceeds from the court’s inherent power to control its processes and
orders so as to make them conformable to law and justice.
Same;  Same; Same;  Same; As held in Indiana Aerospace University vs. Commission on Higher
Education, an order denying the motion to dismiss is interlocutory and so the proper remedy in such case
is to appeal after a decision has been rendered.—In Indiana Aerospace University vs. Commission on
Higher Education, we held: “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. Its function is
limited to keeping an inferior court within its jurisdiction and to relieve persons from arbitrary acts—acts
which courts or judges have no power or authority in law to perform. It is not designed to correct
erroneous findings and conclusions made by the courts.”
Same;  Same; Same;  Same; After the trial court denied a motion to dismiss the complaint, the
defendant should file an answer, proceed to trial and await judgment before interposing an appeal. —It is
a well settled rule that after the trial court denied a motion to dismiss the complaint, the defendant should
file an answer, proceed to trial and await judgment before interposing an appeal.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

     Castillo & Poblador for petitioner.
     Ana Luz Cristal-Tenorio for respondent.

SANDOVAL-GUTIERREZ, J.:

This is a petition for review on certiorari assailing the Decision1 of the Court of Appeals dated March 12,
2001 and its Resolution2 dated May 8, 2001 in CA-G.R. SP No. 62512, entitled "Bonifacio Construction
Management Corporation vs. The Honorable Estela Perlas-Bernabe as Presiding Judge, RTC of Makati
City, Branch 142 and Gary Cruz."

The facts are as follows:

The Bonifacio Construction Management Corporation, petitioner, is a domestic corporation in charge of

the Fort Bonifacio-Kalayaan-Buendia Flyover Project II, while Gary Cruz, private respondent, is a doctor
of medicine with a Medical Clinic and Industrial Service Office located at No. 3434 Limbo St., cor.
Kalayaan Avenue, Makati City.

On January 5, 1998, the construction of the Fort Bonifacio-Kalayaan-Buendia Flyover in Makati City
commenced. Since then, business establishments within the vicinity of the construction site, including
respondent’s clinic, have been affected by the construction works. As a result, his patients and clients
stopped visiting his medical clinic for fear of welding flames from the on-going construction. Furthermore,
they could no longer park their vehicles near the medical clinic.

On September 25, 1998, respondent filed a complaint with the Office of the Barangay Chairman of
Pinagkaisahan, Makati City.3 In turn, the latter, in letters dated October 2 and 8, 1998, 4 advised petitioner
to take appropriate action thereon. Both letters remained unheeded.

Consequently, on November 17, 1998, respondent sent petitioner a letter5 demanding payment of

₱2,000.00 a day for loss of income due to the construction. But petitioner refused to pay, prompting
respondent to file with the Regional Trial Court, Branch 142, Makati City a complaint for damages6 against
petitioner, docketed as Civil Case No. 99-521.

Petitioner filed a motion to dismiss7 on the ground of lack of cause of action and respondent’s
failure to implead as co-defendant the State, a real party in interest. In an Order8 dated February 10,
2000, the trial court denied the motion and required petitioner to file an answer.

Instead of filing an answer, petitioner, on February 28, 2000, filed an urgent omnibus motion9 seeking
reconsideration of the trial court’s February 10, 2000 Order.

On June 19, 2000, the trial court issued an Order10 denying petitioner’s urgent omnibus motion, holding
that the allegations in the complaint constitute a cause of action; and giving petitioner ten (10) days from
notice within which to file its answer. On July 3, 2000, petitioner filed its answer. 11

On August 16, 2000, petitioner filed another motion to dismiss 12 alleging that respondent, as plaintiff,
failed to implead the contractor as an indispensable party. In an Order dated September 19,
2000,13 the trial court denied the motion. Petitioner’s subsequent motion for reconsideration was likewise
denied.

Thus, petitioner filed with the Court of Appeals a petition for certiorari and/or prohibition under Rule 65 of
the 1997 Rules of Court, as amended, alleging that respondent judge acted without jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction when she refused to dismiss the
complaint in Civil Case No. 99-521.

On March 12, 2001, the Appellate Court rendered a Decision dismissing the petition for certiorari and/or
prohibition. Petitioner filed a motion for reconsideration but the same was denied.

Hence, this petition.

Petitioner basically contends before the Court of Appeals that the trial court acted without or in excess of
jurisdiction or with grave abuse of discretion when it denied its second motion to dismiss the complaint
dated August 16, 2000 in Civil Case No. 99-521.

The petition for certiorari and prohibition filed by petitioner with the Court of Appeals is not the proper
remedy to assail the denial by the trial court of its motion to dismiss. The Order of the trial court
denying the 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. This proceeds from the court’s inherent power to
control its processes and orders so as to make them conformable to law and justice. 14

In Indiana Aerospace University vs. Commission on Higher Education,15 we held:

"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. Its function is limited to keeping an
inferior court within its jurisdiction and to relieve persons from arbitrary acts – acts which courts or judges
have no power or authority in law to perform. It is not designed to correct erroneous findings and
conclusions made by the courts."

Assuming that certiorari is the proper remedy, we find no grave abuse of discretion committed by the trial
court in denying petitioner’s second motion to dismiss. We thus sustain the ruling of the Court of Appeals:

"x x x

We have carefully examined the records of the case and the pleadings filed and the challenged Orders of
public respondent, and We are convinced that the latter cannot be faulted with grave abuse of discretion.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment or is
equivalent to lack of jurisdiction and mere abuse of discretion is not enough as it must be grave. (Tañada
vs. Angara, 272 SCRA 18). There is no such showing on the part of public respondent. On the contrary, it
is obvious to Us that public respondent court acted judiciously and with clear observance of due process.

xxxxxxxxx

x x x Indeed the Motion To Dismiss filed by petitioner on August 17, 2000, more than a month after it filed
its answer, is not sanctioned by the 1997 Rules of Civil Procedure. Section 1 Rule 16 of said Rules
specifically provides that the Motion To Dismiss must be made ‘within the time for but before filing the
answer to the complaint or pleading asserting a claim’ x x x. Thus, a Motion To Dismiss may not therefore
be made after an answer had already been filed, in keeping with the pronouncement of the Supreme
Court in Lagutan vs. Icao (224 SCRA 9).

Besides, even granting arguendo that the party sought to be impleaded by petitioner is an indispensable

party, still, as provided for under Sec. 11, Rule 3 of the 1997 Rules of Civil Procedure ‘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 x x x (underscoring for emphasis). Clearly therefore, the Motion To Dismiss as correctly
found by the lower court was procedurally improperly filed, and justifiably denied.

Additionally, by its Motion To Dismiss on the alleged ground of failure to implead or indispensablparty,
petitioner is dictating to private respondent whom to select as defendant. Such is contrary to the ruling of
the Supreme Court in Bank of America NT & SA vs. CA, 186 SCRA 417, where it was held thus: (N)one
of the defendants has the right to compel said plaintiff to prosecute the action against a party if he does
not wish to do so. Of course, the plaintiff will have to suffer the consequences of any error he might
commit in exercising his option, for the defendant that he does not implead or drop from the action, may
well be an indispensable party. (Underlining for emphasis).

From the foregoing disquisition therefore, it is all too clear that errors in this case are attributable not to
public respondent court but to petitioner. Indeed the Motion To Dismiss it filed suffered from several
jurisprudential and procedural flaws which did not escape the judicious scrutiny of public respondent and
which correctly acted under such circumstances."
It is a well settled rule that after the trial court denied a motion to dismiss the complaint, the defendant
should file an answer, proceed to trial and await judgment before interposing an appeal.

Here, after filing its answer, petitioner should have proceeded to trial. Should the decision of the lower
court be adverse to him, his remedy is to appeal.

WHEREFORE, the petition is hereby DENIED. Costs against petitioner.

SO ORDERED.