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.

FACTS

Petitioner Bonifacio Construction Management Corporation was in charge of the Fort Bonifacio-Kalayaan-Buendia Flyover Project II. Private respondent Gary Cruz, a medical doctor, operated a clinic near the construction site. He alleged that the construction activities, starting January 5, 1998, caused welding flames and parking difficulties, driving away his patients and clients. After unheeded barangay conciliation and a formal demand for daily income loss compensation, Cruz filed a complaint for damages against the petitioner in the RTC.
The petitioner filed a motion to dismiss the complaint on grounds of lack of cause of action and failure to implead the State as a real party in interest. The RTC denied this motion. Instead of filing an answer, petitioner filed an urgent omnibus motion for reconsideration, which was also denied. Petitioner then filed its answer. Subsequently, petitioner filed a second motion to dismiss, this time alleging that the contractor was an indispensable party not impleaded. The RTC denied this second motion as well.

ISSUE

Whether the Court of Appeals correctly dismissed the petitioner’s special civil action for certiorari, which assailed the RTC’s interlocutory order denying the second motion to dismiss.

RULING

The Supreme Court denied the petition and affirmed the Court of Appeals. The proper remedy against an interlocutory order, such as the denial of a motion to dismiss, is not a petition for certiorari under Rule 65 but an ordinary appeal after a final judgment on the merits. A writ of certiorari is reserved for correcting grave abuse of discretion equivalent to lack of jurisdiction, not for correcting every controversial interlocutory ruling. The Court found no such grave abuse in the RTC’s denial.
Procedurally, the second motion to dismiss was infirm. Under Rule 16, Section 1 of the 1997 Rules of Civil Procedure, a motion to dismiss must be filed within the time for but before filing an answer. Having already filed its answer, petitioner was barred from subsequently filing a motion to dismiss. Furthermore, even assuming the alleged party was indispensable, misjoinder or non-joinder of parties is not a ground for dismissal under Rule 3, Section 11; the court may simply order the addition of parties. The petitioner, as a defendant, cannot dictate to the plaintiff whom to sue. The correct course for petitioner after the denial was to proceed to trial and, if aggrieved by the final judgment, to elevate the matter on appeal.