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[ G.R. No. 138102. June 14, 1999]

INTERTECH DEVELOPMENT & CONSTRUCTION CO. vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 14, 1999.

G.R. No. 138102 (Intertech Development and Construction Co., represented by Romeo R. Tugano vs. Court of Appeals, Enrico C. Rios.)

At bar is a petition under Rule 65 which seeks to reverse and set aside the decision of the Court of Appeals which dismissed for lack of merit the petition for certiorari and mandamus filed by et al Intertech Development and Construction Co., as represented by Romeo R. Tugano. The same petition also prayed that respondent Court of Appeals declare that the trial court judge which dismissed the case against private respondent, Enrico Rios, as clothed with jurisdiction to try the case.

The pertinent facts are as follows:

Petitioner, Intertech Development and Construction Co., represented by Romeo R. Tugano, is a corporation while private respondent Enrico Rios is the president of Timberland Properties, Inc.

Intertech undertook to develop the remaining land of Remedios Villa Subdivision which is owned by Timberland. The parties agreed that the payment would be based on the value of the work actually accomplished. A series of transactions transpired between the two despite the fact that in all said transactions, only partial payments were given by Timberland.

Subsequently, herein petitioner filed an action for sum of money with the Regional Trial Court, Branch 93 of Quezon City. Said complaint impleaded Enrico Rios, the president of Timberland.

Private respondent's motion to dismiss on the ground of failure to state a cause of action was granted by the trial court, prompting petitioner to go to the Court of Appeals via a petition for certiorari under Rule 65 with mandamus alleging that the trial judge gravely abuse his discretion in dismissing the case against Timberland's [resident, Enrico Rios. The petition was dismissed.

Undaunted, the petitioner filed the instant petition.

Petitioner insists that so as to assure its legitimate claims, private respondent should be impleaded. It anchors its position on the fact that there is a common cause existing between the parties, namely, Timberland, on the one hand and respondent Rios, on the other.

The Court of Appeals held that the contention of the petition as regards the joinder of the parties as well as petitioner's insistence in impleading Timberland's president is misplaced because the real parties to the contract are the two (2) corporations and not its officers not employees.

The evidence shows that it was indeed Timberland which entered into the contracts. Rios, as Timberland's president, has a separate and distinct personality from that of Timberland. It is a settled rule that a corporation is clothed with personality which is distinct and separate from the persons composing it. Furthermore, the doctrine of piercing the veil of corporate fiction does not apply, absent any showing that there exists a valid ground for doing so. The personal liability of an officer will only attach when it is clearly established that such case falls under the exceptions allowed by law.

Furthermore, the Court of Appeals was correct in holding that the dismissal was proper for settled is the rule that when a motion to dismiss is based on failure to state a cause of action, no evidence may be allowed and the issue should be determined in the light of the allegations in the complaint.

After a judicious examination of the petition, we are of the opinion and so hold that petitioner failed to sufficiently establish why the actions of the court below which have passed upon the same issues should be reversed. Settled is the rule that the extraordinary remedy of certiorari can be availed only if the denial of the motion constitute grave abuse of discretion (Labor arbiter Tonde�a Distillers vs. Ponferrada, 264 SCRA 540 [1996]). It should be mentioned that the recourse to Rule 65 is improper, for what petitioner should have followed is the procedure under Rule 45. In the case at hand, recourse to Rule 65 was resorted to obviously because petitioner's appeal under Rule 45 has prescribed. This present petition is a trick to revive a lost of appeal.

WHEREFORE, petition is dismissed.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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