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).