JUSTICE MARTIN VILLARAMA, JR.: THE TRIAL COURT’S DENIAL OF A MOTION TO DISMISS CANNOT BE QUESTIONED IN A CERTIORARI PROCEEDING UNDER RULE 65

           This is because a certiorari writ is a remedy designed to correct errors of jurisdiction and not errors of judgment. The appropriate course of action of the movant in such event is to file an answer and interpose as affirmative defenses the objections raised in the motion to dismiss.  If, later, the decision of the trial judge is adverse, the movant may then elevate on appeal the same issues raised in the motion. (Urethane Trading Specialist, Inc. v. Ong, G.R. No. 164632, October 29, 2008, 570 SCRA 188, 191-192.)

             

            The only exception to this rule is when the trial court gravely abused its discretion in denying the motion.⁽ See Nicolas v. Sandiganbayan, G.R. Nos. 175930-31 & 176010-11, February 11, 2008, 544 SCRA 324, 336 and Choa v. Choa, 441 Phil. 175, 182-183 (2002). This exception is, nevertheless, applied sparingly, and only in instances when there is a clear showing that the trial court exercised its judicial power in an arbitrary or despotic manner by reason of passion or personal hostility.⁽ Balo v. Court of Appeals, G.R. No. 129704, September 30, 2005, 471 SCRA 227, 234.)

          Further, the abuse of the court's discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of, law. (Roman Catholic Archbishop of San Fernando Pampanga vs. Fernando Soriano Jr., et al., G.R. No. 153829, August 17, 2011^, VILLARAMA, JR., J.:)