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Comment Extension of Time

The plaintiff-appellee filed a comment-opposition to the defendant-appellant's motion for a 45-day extension to file their brief and a motion to dismiss the appeal. The plaintiff argues the extension motion was not filed on good cause as the defendant's counsel has been aware of the case since March and failed to secure records. Furthermore, the extension motion was filed out of time per the rules. As the defendant failed to file their brief on time, the plaintiff requests the appeal be dismissed.

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388 views

Comment Extension of Time

The plaintiff-appellee filed a comment-opposition to the defendant-appellant's motion for a 45-day extension to file their brief and a motion to dismiss the appeal. The plaintiff argues the extension motion was not filed on good cause as the defendant's counsel has been aware of the case since March and failed to secure records. Furthermore, the extension motion was filed out of time per the rules. As the defendant failed to file their brief on time, the plaintiff requests the appeal be dismissed.

Uploaded by

jalco company
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 4

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

ABC
Plaintiff-Appelee, CA-GR.CV No.
-versus-
EFG Re: Recover of Possession
Defendant-Appellant, and Damages

x----------------------------------------x

COMMENT-OPPOSITION
(to Motion for Extension of Time to File Brief for the Defendant)
With MOTION TO DISMISS

COMES NOW, the Plaintiff-Appellee, thru the undersigned


counsel, unto this Honorable Court of Appeals, most respectfully avers
and states:

1. That we received a copy of the Motion for Extension of Time


to File Brief for the Defendant-Appellant for another period of forty-five
(45) days from July 01, 2021 or until 13 August 2021, on the ground that
the defendant-appellant’s’ counsel must still have to secure the records of
the case;

Motion for Extension Not Based on


Good and Sufficient Cause and Filed
Out of time

2. That the Notice to file appellant’s brief was issued by


the Honorable Court of Appeals as early as February 09, 2021,
and the records would show that the counsel for the defendant-
appellant filed their notice of appearance as early as March 16,
2021;

3. That it is contrary to human experience, if not highly


incredulous, to believe the claim of defendant-appellant’s counsel that
they received said notice only on May 17, 2021 or more than three (3)
months from issuance. In the absence of proof, such claim is self-serving;

4. Be that as it may, the extension of time for the filing of the


briefs will be allowed only for good and sufficient cause. (Sec. 12. Rule
44);

5. In the case at bar, the ground relied upon by the defendant-


appellant’s counsel is not a good and sufficient cause. As early as March
16, 2021, when the defendant-appellant’s counsel formally entered their

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appearance as counsel, they are already aware of the pendency of this case
before the Honorable Court of Appeals, and yet, failed to secure the
records of the case.

6. Almost four (4) months had passed since the notice of


appearance was filed and yet the defendant-appellant’s counsel would like
us to believe they have not yet secured copies of the record of the case;

7. Moreover, Section 12 of Rule 44, categorically states that


the motion for extension must be filed before the expiration of the time
sought to be extended, that is, before the lapse of the 45-day period;

8. It is incumbent upon the defendant-appellee to show proof


that the motion for extension was filed before the expiration of the 45-day
period to file appellant’ brief, which the defendant-appellant miserably
failed to do so. Aside from the self-serving statement that they received
the notice only on May 17, 2021, defendant-appellant offered no other
evidence;

9. Thus, the motion for extension of time to file appellant’ brief,


must be denied for lack of good and sufficient cause and for failure to
show proof that the same is filed before the expiration of the 45-day
period;

APPEAL MUST BE DISMISSED


FOR FAILURE TO FILE
APPELANT’S BRIEF

10. Furthermore, the right to appeal is not a natural right or a part


of due process. It is merely a procedural remedy of statutory origin and
may be exercised only in the manner prescribed by the provisions of law
authorizing its exercise. (Neplum, Inc. vs. Orbeso, 433 Phi. 844 (2002);

11. Section 7, Rule 44 is explicit in this respect. Relative thereto,


is Section 1(e), Rule 50 which states:

“Sec. 1. Ground for dismissal of appeal. – An appeal may be


dismissed by the Court of Appeals, on it own motion or on that of
the appellee, on the following grounds:

xxx

(e) Failure of the appellant to serve and file the required


number of copies of his brief or memorandum within the time
prescribed by these Rules.

12. Evidently, the failure of the defendant-appellant to file their


appellant’s brief warranted the immediate dismissal of the appeal.
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13. Hence, this motion to dismiss.

PRAYER

WHEREFORE, premises considered, it most respectfully prayed


for unto this Honorable Court of Appeals, that the motion for extension of
time to file appellant’s brief be DENIED and that the instant appeal be
DISMISSED.

RESPECTFULLY submitted, 23 July 2021, Makati City for the


City of Manila.

NOTICE

Honorable Clerk of Court


Court of Appeals
Manila

Greetings:

Kindly submit the foregoing pleading for the kind consideration of


the Honorable Court immediately upon receipt thereof.

Copy furnished:

PUBLIC ATTORNEY’S OFFICE


Special and Appealed Cases Service
5th Floor, DOJ Agencies Bldg. NIA Road
corner East Avenue, Diliman,
Quezon City, 1100
Email: paosacs.co@gmail.com

EXPLANATION OF FILING AND SERVICE

Copy of this PLEADING was served to the above-mentioned


parties through registered mail/LBC due to time and distance constraints,
and for lack of the undersigned’ staff who can serve the same in person.

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