Month: November 2024

In a ruling published on 1 April 2022, the Second Civil Chamber of the Court of Justice of the State of Rio de Janeiro, accepting the thesis defended in counterarguments by the company being appealed, no longer heard an appeal, given the finding the absence of a specific challenge to the grounds of the appealed sentence.¹

Due to the same reasons, the Fourth Civil Chamber of the Court of Justice of the State of Rio de Janeiro also decided in the same sense, when judging an appeal that failed to comply with this important extrinsic requirement of admissibility.²

The similarity between the two highlighted judgments is not limited to the outcome of the cases, as there is another common fator between the processes, which relates to the values involved. To explain: these are typical cases of strategic civil litigation in Brazil.

Just to give an order of magnitude, the value of these two cases combined reached the amount of a little more than R$32,000,000.00 (approx. $5,700,000 .USD). Therefore, the understanding established by the Rio de Janeiro court in these two judgments, of an undeniable strategic nature for the companies that participated in the processes, indicates a tendency for ordinary instances to demand more rigour, which is already being done long ago by the Superior Court of Justice in Brazil, the fulfillment of the extrinsic requirements of appeal admissibility.

Within the scope of the Superior Court of Justice of Brazil, the admissibility screening of appeals submitted for analysis by the superior court is quite strict, thus restricting the possibilities of facing the appeal merit.

Among the summaries issued by the superior court regarding the obstacles to addressing the merits of appeals submitted to the STJ’s Chambers, summary statement 182 stands out. It is cited as follows:

1 Civil Appeal No. 0100620-80.2021.8.19.0001, Second Civil Chamber, Judge (a). Rapporteur (a). Maria Isabel Paes Gonçalves.

2 Civil Appeal No. 0216631-03.2018.8.19.0001, Fourth Civil Chamber, Judge (a). Rapporteur (a). Maria Helena Pinto Machado.

“The appeal under Article 545 of the CPC is inadmissible if it fails to specifically challenge the grounds of the contested decision”

The jurisprudence of the Superior Court of Justice in Brazil has applied Summary 182, especially when the grounds of the appeal against the decision denying the special appeal are limited to repeating the arguments presented in the special appeal itself, without addressing the specific grounds of the decision denying the appeal.

Such rigour had not been seen in ordinary instances, specifically in second-degree trials at the Rio de Janeiro Court. Even though the Brazilian civil procedure code has na express provision that the admissibility screening of appeals in the second degree can also be rigorous in this sense, in practice, the intelligence of art. 932, item III, and art. 1,010, item III, both of the Brazilian Civil Procedure Code, had been little applied in the judgments of civil appeals. However, the two recent precedents indicated here show that there is a clear sign that greater rigour should be imposed on the verification of extrinsic requirements for appeal admissibility.

Therefore, it is important to understand the legal construction structured in these two processes and validated by the court in the rulings handed down by the Second and Fourth Civil Chambers of the Court of Justice of Rio de Janeiro, respectively.

Since in both cases, the appeals filed against the first-instance judgments merely reproduced the arguments presented in the defenses, without addressing the grounds of the aforementioned judgments, it was argued in the counterarguments that there was a violation of the principle of dialectical appeal and the consequent application of Article 932, III, and Article 1.010, III, of the Brazilian Civil Procedure Code. The relevant legal provisions are as follows:

“Art. 932. It is up to the rapporteur: III – is not aware of an appeal that is inadmissible, prejudiced, or has not specifically challenged the grounds of the contested decision.

Art. 1.010. The appeal, filed by petition addressed to the first-degree court, will contain:

III- the reasons for reform or declaration of nullity”

In the judgments that decided the appeal resources, the thesis of violation of the principle of dialectical appeal due to the lack of specific challenge to the grounds of the judgment was recognised. It is worth highlighting the following excerpts from the rulings:

Civil Appeal No. 0100620-80.2021.8.19.0001-

“(…) On merit, the appellant reiterates “ipsislitteris” the argument conveyed in the defense, in the sense that, in short, the data produced and delivered by the author would have been carried out in disagreement with the requirements contained in the technical specification of the contract. It turns out that he did not attach any documentary evidence to the defense to corroborate the allegations. And, when asked for evidence, she expressed disinterest in the evidentiary phase (e-pg. 670). The ruling came, stating that “In the present case, the defendant alleges that the data produced and delivered by the plaintiff had been carried out in disagreement with the requirements contained in the technical specification of the contract, which is why they were reprocessed and interpreted by the defendant herself. However, this allegation is unaccompanied by any proof.” But, as noted, the appellant reproduces the content of the e-pgs. defense 554/573, depending on comparing both procedural documents; not exercising combat against sentential reasons (…). It must be concluded, therefore, that given the above, in the presente case, the matter referred to this Court has no direct relationship with the appealed judgment. Certainly, the basis for the appeal is not aligned with the subject matter of the decision being contested. Indeed, if the action of the second degree were substitutive, there would be no need for point-by-point analytical resignation. Nonetheless, as the activity carried out in this level of jurisdiction is appealable, the dissatisfied party, when appealing the sentence, must decline the points that intend to see pensioners and indicate the factual and legal foundations that work as support for their claim. Thus, it is evident that the appeal is inconsistent, primarily because the reasons contained within it are not related to the contested judgment”

Civil appeal no. 0216631-03.2018.8.19.0001 –

“Therefore, the appeal filed does not comply with the provisions of art. 1,010, III, of CPC/20151, considering that the reasons for the appeal do not specifically challenge the foundations of the sentence. (…) It is worth noting that the simple repetition of arguments presented before the lower court, without specifically addressing the theses that the lower court used to support the appealed decision, reflects unfounded disagreement on the part of the party with the unfavorable decision, thus not giving rise to the reexamination of the matter and the delivery of a new trial, given the non-compliance with the so-called “Specified Objection Burden”. (…) Finally, considering that the appellant did not attack the reasons for the sentencing Court’s decision, thus failing to meet the extrinsic requirement of admissibility, it is necessary not to hear the appeal. Due to these reasons, I vote not to hear the appeal, due to flagrant inadmissibility”.

It is, therefore, imperative to ensure dialectical coherence between the challenged decision (judgments) and the grounds for appeal. Indeed, if dialectical coherence is not identified, an extrinsic requirement for the admissibility of the appeal is not met.

In this sense, Professor Barbosa Moreira already highlighted in his work: The New Brazilian Civil Process³:

“(…) The reasons for appeal (“grounds of fact and law”), which may appear in the petition itself or be offered in an attached procedural document, comprise, as is intuitive, the indication of errors “in procedendo”, or “in judicando”, or both species, which in the appellant’s view vitiate the sentence, and the explanation of the reasons why they should be considered as such. It has been correctly that mere invocation, especially in standardised documents, of reasons that do not decide to the content of the judgment is not satisfactory”

Conclusion

It is concluded, therefore, that the mere repetition of the arguments already presented in the defense, in a standardised document, without the foundations of the sentence having been effectively challenged, makes the appeal useless since it fails to meet the extrinsic requirement of admissibility, resulting in its nonacknowledgment by the judging body.

Thus, at a time when algorithms and artificial intelligence are applied to the field of justice that allow the mass production of procedural documents, the slightly more rigorous screening of the admissibility of appeals in ordinary instances highlights the danger of standardising such documents in strategic civil litigation in Brazil, which highlights the importance of a lawyer’s careful and diligent performance in conducting the process.

1 Civil Appeal No. 0100620-80.2021.8.19.0001, Second Civil Chamber, Judge (a). Rapporteur (a). Maria Isabel Paes Gonçalves.
2 Civil Appeal No. 0216631-03.2018.8.19.0001, Fourth Civil Chamber, Judge (a). Rapporteur (a). Maria Helena Pinto Machado.
3 MOREIRA, José Carlos Barbosa. O Novo Processo Civil Brasileiro, 18ª Edição, pg. 155.