3.9 Appellate review
In a very synthetic way, the cognizance phase is composed of the pleading, evidentiary and judgment phases. Consequently, the limits of a judge’s cognizance, whether with regard to matters of fact or matters of law, are defined during the pleading phase, in which the parties have the burden of discharging their procedural burden, clearly indicating all their theories and the evidence in their favor, under penalty of procedural preclusion. That is, if a party does not discharge its procedural burden of exposing all matters of facts in their favor with regard to the conflict in judgment, their opportunity to carry out any questioning will be precluded.
The burden is particularly serious for the defendant, who has the procedural burden of objecting all factual and legal arguments presented by the plaintiff, under penalty of being considered in default. Conversely, as already discussed, if the plaintiff does not adequately make their claim, the judge’s cognizance will be limited to what was requested since it cannot go beyond what was requested (Article 141 of the CPC). Therefore, after the disputed points of fact and law are defined by the judge in the pre-trial order, the limits of the judge’s cognizance are also defined and bind the judgment. This decision can be appealed by means of an interlocutory appeal to a court of appeals.
After the evidentiary phase, the parties present final arguments, in which they make final considerations on the evidence produced, comparing them with their arguments, before allowing the judge to decide on the action. The judge’s final judgment, by which the action ends, may be with or without prejudice – that is, with or without consideration of the disputed matter.
According to Article 487 of the CPC, there is a resolution on the merits if the judge:
I – accepts or rejects the request made in the action or counterclaim;
II – decides, at the judge’s own initiative or upon request, on the occurrence of preemption or limitation; [or]
III – approves:
- a) the acknowledgement of the merits of the request made in the action or in the counterclaim;
- b) the transaction; [or]
- c) the waiver of the request made in the action or counterclaim.
The following situations may also result in the termination of a case by means of a decision:
I – dismissal of the complaint;
II – the lawsuit is stayed for more than 1 (one) year due to negligence of the parties;
III – by failing to promote the acts and diligences incumbent upon them, the plaintiff abandons the case for more than 30 (thirty) days;
IV – the absence of assumptions for the establishment and valid and regular development of the procedure;
V – recognizing the existence of preemption, lis pendens, or res judicata;
VI – verifying the lack of standing or procedural interest;
VII – accepting the allegation of the existence of an arbitration clause or when the arbitration court recognizes its jurisdiction;
VIII – ratifying the withdrawal of the case;
IX – in the event of the party’s death, the lawsuit is deemed non-transferable by legal provision; and
X – in the other cases provided for in [the CPC]. (Article 485 of the CPC)
During the course of a case, it is possible for the judge to render decisions necessary to ensure its progress, with or without a decision, known respectively as interlocutory decisions or orders. Against interlocutory decisions, it is possible to file certain appeals according to their nature. Orders cannot be appealed (Article 1,001 of the CPC). A party that expressly or tacitly accepts the decision cannot appeal it. Tacit acceptance is the practice, without any exception, of an act incompatible with the will to appeal (Article 1,000 of the CPC). The term for appeals is, as a rule, 15 days from the date of publication of the decision (Article 1,003 of the CPC), except for motions for clarification, for which it is five days, all counted in business days (Article 219 of the CPC).
At first, court decisions may be subject to motions for clarification, appeals that, as will be discussed, aim to clarify the decision on a certain point or to remedy an omission or contradiction (Articles 1,022–1,027 of the CPC). As a rule, such motions are not intended to modify the decision rendered, but, occasionally, depending on the clarification or omission remedied, it may result in a change in the understanding. Motions for clarification are directed to the court that rendered the disputed decision – that is, in this case, the appeal is to the trial court.
Article 994 of the CPC provides for appeals allowed under Brazilian law: appeal from final judgment, interlocutory appeal, internal interlocutory appeal, motion for clarification, ordinary appeal, appeal to the STJ, appeal to the STF, interlocutory appeal from an appeal to the STJ or to the STF, and appeal against a divergent decision. Appeals do not prevent the effectiveness of the decision unless otherwise provided for in law or in a court decision in this sense (Article 995 of the CPC).
At the trial court, in view of interlocutory decisions and partial decisions on the merits by the judge, it is possible to file an interlocutory appeal after the motion for clarification has been filed (or is not applicable) without extinguishing the action. In view of decisions definitively resolving the action, the judge closing or not the merits, (Article 1,009 of the CPC) it is possible to file an appeal from the final judgment after the motion for clarification has been filed (or is not applicable). Interlocutory appeals and appeals from final judgment are filed before the courts immediately higher than the trial courts – the courts of appeal (or higher courts).
Appeals may be filed by the losing party, by an aggrieved third party or by the Public Prosecutor’s Office as a party or as a legal guardian. If filed by a third party, the third party must demonstrate that the decision on the legal relationship submitted to judicial review may affect the right that they claim to have or that they may discuss in court as a procedural substitute (Article 996 of the CPC).
If the plaintiff and defendant are defeated, an appeal filed by either of them may be joined by the other in case of an appeal from final judgment, an appeal to the STF or an appeal to the STF (Article 997(1) of the CPC). Such a cross-appeal is subordinated to the independent appeal, the same rules being applicable to it as to the admissibility requirements and trial in court (Article 997(2) of the CPC). Thus, a cross-appeal will not be heard if the main appeal is withdrawn or if it is considered inadmissible (Article 997(2)(III) of the CPC).
The appellant may, at any time, without the consent of the respondent, withdraw the appeal (Article 998 of the CPC), except if it involves a matter in which general repercussion has already been recognized and that is the subject matter of a trial of repeated appeals to the STF or to the STJ (Article 998(1) of the CPC). For the same reason, parties can, before or after trial, enter into an agreement and request its judicial ratification, thus overruling whatever may have been decided.
When filing an appeal, the appellant must evidence, when required by the relevant legislation, the payment of the appeal bond, including the remittance and return fees, under penalty of being dismissed (Article 1,007 of the CPC). Appeals filed by the Public Prosecutor’s Office, the Federal Government, the federal district, the states, the municipalities or their respective autonomous agencies, or by those that enjoy legal exemption, are exempt from the payment of an appeal bond, including remittance and return fees (Article 1,007(1) of the CPC). Insufficient payment of the appeal bond, including the remittance and return fees, leads to dismissal if the appellant, notified by means of the attorney, does not make the payment within five days (Article 1,007(2) of the CPC). The payment of remittance and return fees is not required in electronic proceedings (Article 1,007(3) of the CPC).
If no appeal is filed within the term, the party’s right to object the decision is precluded.
The decision rendered by the appeal court replaces the decision objected to with respect to the appealed part (Article 1,008 of the CPC). The competent court for the judgment of interlocutory appeals or appeals from final judgment may fully review the matter that was submitted to it – both the matters of fact and matters of law. The competent court for the judgment may even determine measures to the lower court if deemed necessary.
In view of the decisions rendered by the higher courts (i.e., appellate decisions), it is still possible to file a motion for clarification, addressed to the higher court itself, to clarify the decision or to remedy an omission, contradiction or ambiguity. Once such a motion for clarification is resolved, it is possible to file appeals to the STJ or to the STF against the appellate decision. In these cases, the matters that allow an appeal are more restricted, because they are exhaustively foreseen in the Federal Constitution, and it is not possible to rediscuss evidence.
3.9.1 Appeal from final judgment
An appeal from final judgment is an objection to decisions. Such appeals are regulated by Articles 1,009–1,014 of the CPC. These appeals must be filed by a petition addressed to the trial court, containing:
I – the names and identification of the parties;
II – the description of the fact and of the right;
III – the reasons for the request for change or for declaration of nullity; [and]
IV – the request for a new decision.
Paragraph 1. The appellee will be notified to file the appellee’s brief within 15 (fifteen) days.
Paragraph 2. If the appellee files a cross-appeal, the judge will notify the appellant to file the brief.
Paragraph 3. […] [t]he case will then be forwarded to the court […], without any judgment of admissibility. (Article 1,010 of the CPC)
As a rule, such appeals have the effect of supersedeas (Article 1,012 of the CPC). However, effective immediately after publication is a decision that:
I – approves land division or allotment;
II – sentences the payment of support;
III – dismisses the case without prejudice or dismisses the judgment debtor objections;
IV – grants the request for arbitration;
V – confirms, grants, or revokes provisional injunction;
VI – decrees interdiction;
VII – other hypothesis provided for in law. (Article 1,012(1) of the CPC)
For these cases, in which the decision produces an immediate effect, the interested party may file for provisional enforcement after the decision is published (Article 1,012(2) of the CPC). Additionally, the interested party may request the granting of the effect of supersedeas, provided that the interested party demonstrates the likelihood of the appeal being granted or, if the grounds are relevant, that there is the risk of serious damage or damage difficult to repair. This is done by a request addressed to:
I – the court, in the period between the filing of the appeal from final judgment and its assignment, the rapporteur designated for its examination being prevented from judging it; [or]
II – the rapporteur, if the appeal from final judgment has already been assigned. (Article 1,012(3)–(4) of the CPC)
The appeal from final judgment returns the cognizance of the disputed matter to the higher court, which is able to appreciate and judge all the matters raised and discussed in the case, even if they have not been resolved, so long as they are related to the matter discussed in the appeal (Article 1,013 of the CPC).
The court, when reviewing an appeal, may:
I – change the decision that dismissed the case without prejudice;
II – decree the decision null and void, as it is not congruent with the limits of the request or cause of action;
III – verify the omission in the examination of one of the requests, a case in which the court may judge it; [or]
IV – decree the decision nullity due to lack of grounds. (Article 1,013(3) of the CPC)
When changing a decision that recognizes pre-emption or limitation, the court, if possible, judges the merits, examining the other matters, without determining the return of the case to the lower court (Article 1,013(4) of the CPC).
When the request or the defense has more than one ground, and the judge grants only one of them, the appeal from final judgment returns the cognizance of the others to the court (Article 1,013(2) of the CPC).
Matters of fact not presented in the lower court may be raised in the appeal from final judgment if the party proves that it failed to do so due to force majeure (Article 1,014 of the CPC).
3.9.2 Interlocutory appeal
An interlocutory appeal is intended to object to interlocutory decisions (Articles 1,015–1,020 of the CPC). According to Article 1,015 of the CPC, an interlocutory appeal can be filed against:
I – provisional injunctions;
II – case merits;
III – rejection of the arbitration clause claim;
IV – request for piercing the corporate veil;
V – rejection of the request for free legal aid or acceptance of the request for its revocation;
VI – exhibition or possession of a document or thing;
VII – exclusion of a joint party;
VIII – rejection of the request for limitation of the joinder of parties;
IX – admission or non-admission of third-party intervention;
X – granting, modification or revocation of the effect of supersedeas to motions to stay execution;
XI – reassignment of the burden of proof pursuant to Article 373, Paragraph 1;
XII – (vetoed);
XIII – other cases expressly referred to in law.
An interlocutory appeal may also be filed against interlocutory decisions rendered in the decision settlement or judgment enforcement phases, in the process of execution or in the inventory process (Article 1,015(1) of the CPC).
Interlocutory appeals are addressed directly to the competent court by means of a petition stating the names of the parties, the description of the fact and right, the reasons for the request to change or invalidate the decision and the request itself, and the names and full addresses of the attorneys in the case (Article 1,016 of the CPC).
The rapporteur to whom the appeal is assigned may grant the effect of supersedeas to the appeal or grant, as interlocutory relief (totally or partially), or the appeal request, informing the judge of their decision; order that the appellee be personally notified – by letter with acknowledgment of receipt (if appellee does not have an attorney), by the Court Register or by letter with acknowledgment of receipt addressed to the attorney – so that they may respond within 15 days, allowing them to attach the documentation the rapporteur deems necessary to judge the appeal (Article 1,019 of the CPC). The rapporteur will also request a trial date within a period not more than one month from notification of appellee (Article 1,020 of the CPC).
3.9.3 Motion for clarification
A motion for clarification is an appeal regulated by Articles 1,022–1,026 of the CPC. A motion for clarification may be filed against any court decision in order to:
I – clarify obscurity or eliminate contradiction;
II – supply the omission of a point or issue on which the judge should have discussed at his own initiative or upon request; [or]
III – correct material error. (Article 1,022 of the CPC)
Such a motion must be filed, within five days, in a petition addressed to the judge, indicating the error, obscurity, contradiction or omission, and it is not subject to an appeal bond (Article 1,023 of the CPC). The judge will notify the respondent so that, if they so wish, they can comment, within five days, on the motions filed, in the event that the motion’s possible acceptance implies a change in the decision that is the subject of the motion for clarification (Article 1,023(2) of the CPC). Afterward, the judge will judge the motion within five days and remedy the matter (Article 1,024 of the CPC).
In the courts, the rapporteur presents the motion at the next session, casting their vote, and, if no judgment is rendered at this session, the appeal will be automatically included in the agenda (Article 1,024(1) of the CPC). When a motion for clarification is filed against the decision of the rapporteur or against another decision rendered by a single judge in court, the body that rendered the decision that is the subject of the motion decides on the matter monocratically (Article 1,024(2) of the CPC).
If the acceptance of a motion for clarification implies a change to the decision being objected, the respondent who has already filed another appeal against the original decision has the right to supplement or amend their briefs within the exact limits of the change and within 15 days from the date of notification of the decision that is the subject of the motion (Article 1,024(4) of the CPC). If the motion for clarification is rejected or does not change the conclusion of the previous judgment, the appeal filed by the other party before the publication of the judgment of the motion for clarification will be processed and judged regardless of its ratification (Article 1,024(5) of the CPC).
Motions for clarification have no effect of supersedeas and interrupt the term for filing an appeal (Article 1,026 of the CPC). The effectiveness of a decision by a single judge or group of judges may be suspended by the respective judge or rapporteur if the likelihood of the appeal being granted is demonstrated or, if the grounds are relevant, if there is a risk of serious damage or damage that would be difficult to repair (Article 1,026(1) of the CPC). When a motion for clarification is manifestly frivolous, the judge or the court, by means of a grounded decision, can order the party that made the motion to pay a fine not exceeding two percent of the adjusted amount in dispute (Article 1,026(2) of the CPC). Where there is a repetition of manifestly frivolous motions for clarification, the fine is increased to up to 10 percent of the adjusted amount in dispute, and the filing of any appeal will be conditional upon the deposit of the fine amount, except in the case of the Public Treasury and the beneficiary of free legal aid, who pays this amount at the end, after all the possible appeals to higher instances have been exhausted (Article 1,026(3) of the CPC).
3.9.4 Internal interlocutory appeal
An internal interlocutory appeal is an appeal that may be filed against a decision rendered by the rapporteur and is regulated by Article 1,021 of the CPC. Such an appeal is addressed to the rapporteur, who notifies the respondent to manifest on the appeal within 15 days, at the end of which, if there is no retraction, the rapporteur submits the appeal to judgment by the panel, including it in the agenda (Article 1,021 of the CPC).
3.9.5 Appeals to the Federal Supreme Court and to the Superior Court of Justice
After an appeal from the final judgment has been decided, there is still the possibility of filing appeals to the STF and to the STJ. Such appeals are provided for in Articles 1,029–1,440 of the CPC. However, the matters that may be appealed are restricted and specific. While appeals to the STF aim to verify violations of the Constitution, appeals to the STJ deal with violations of federal law. In both cases, it is possible to argue a divergence in the already understandings of the STF or of the STJ.
The STJ or STF may disregard formal defects in a timely appeal or order its correction, provided that the defect is correctable and not considered serious (Article 1,029(3) of the CPC).
As a rule, the decisions of the STF and STJ do not have the effect of supersedeas. For this effect to be granted, it is necessary to apply to the respective higher court (if the appeal has been admitted but not yet assigned) or to the rapporteur, the president or vice-president of the court of origin (if the appeal has already been assigned), as long as the appeal has not yet had its admissibility examined (Article 1,029(5) of the CPC). Once the appeals have been admitted, Article 1,034 of the CPC provides that they can only be about matters of law, not allowing a review of facts or evidence. The appeal, however, has the effect of review, allowing the court to also hear the other causes of action or grounds when recognizing the illegality or unconstitutionality with general repercussion.
Article 1,035 of the CPC highlights the importance of the general repercussion for appeals to the STF, stating that the STF may, in an unappealable decision, not hear an appeal to the STF that does not have a matter recognized as having general repercussion (meaning the existence of relevant economic, political, social or legal issues that go beyond the interests of the parties in the case). The general repercussion must be demonstrated in a specific chapter of the appeal. Once the general repercussion is recognized in an appeal to the STF, the rapporteur orders the stay of all pending individual or class proceedings in Brazil on the same issue, and the appeal must be heard within one year (Article 1,035(9) of the CPC).
3.9.6 Internal interlocutory appeal against a decision rejecting an appeal to the Federal Supreme Court or to the Superior Court of Justice
Article 1,042 of the CPC provides for an internal interlocutory appeal against a court decision that rejects an appeal to the STF or to the STJ. Such interlocutory appeals are addressed to the STF or the STJ, respectively.
3.9.7 Appeals against divergent decisions
Articles 1,043–1,044 of the CPC provide for appeals against divergent decisions.
Article 1,043. An appeal may be lodged against the judgment of a fractional court:
I – in an [appeal to the STF or the STJ], diverges from the judgment of any other body of the same court, either in appellate decisions, motions and leading cases, on the merits;
[…]
III – in an [appeal to the STF or the STJ], diverges from the judgment of any other body of the same court, either in an appellate decision on the merits and another that has not heard the appeal, although it has examined the dispute.
[…]
Paragraph 2. The divergence that authorizes the filing of an appeal against a divergent decision may occur in the application of substantive law or procedural law.
Paragraph 3. An appeal against a divergent decision may be filed when the leading appellate decision belongs to the same panel that rendered the decision objected, provided that its composition has been altered by more than half of its members.
[…]
Article 1,044. In the appeal against a divergent decision, the procedure established in the internal rules of the respective higher court will be observed.