Still on the hypotheses when filing an interlocutory appeal is admissible
In the previous article, starting from the premise that the rule of art. 1.015 is a restrictive rule of rights (because it controls the appeals), we suggested an interpretation whose result would not be any restraining interlocutory appeal. To that end, we proposed the following: to consider legal hypotheses, in this case, as definitive does not prevent the interpretation of the legal text in a systematic and teleological way.
In fact, to a great extent, a similar problem arises in the chapter concerning the action for relief from judgment, whose legal hypotheses are considered definitive. If, on the one hand, it is true that this prevents some analogical reasoning from being simply and purely applied in order to create hypotheses of reliefs not provided by the law, on the other hand, the fact of being definitive does not preclude the interpretation that gives the text enough breadth to be compatible with the comprehensiveness of the rule. In short: the interpretation of rules that, in establishing definitive hypotheses, mean to restrict the admissibility of appeals must be in such a way that it does not exacerbate the restriction.
Following this line of reasoning, the Fourth Panel of the Superior Court of Justice, in a very recent judgment of an appeal reported by Justice Luis Felipe Salomão, and that took place on November 14, admitted that an interlocutory appeal may be brought against judgments about jurisdiction and recusal matters. As far as we know, it is argued that the art. 64, § 3 of the CCP, set forth that the claims of lack of jurisdiction shall be judged “at once”; and, taking into account that the way is the interlocutory order, the items in art. 1.015 should be interpreted broadly; or, as it was mentioned above, in such a way that the legal restriction shall not be further exacerbated. In addition, it would have been invoked the fact that, if there is the provision for the filing of an interlocutory appeal for the prevalence of an arbitration agreement, the same ratio should apply to the state jurisdiction (see Special Appeal 1.679.909).
And, in fact, it seems preferable to admit the possibility of an appeal – understood as a way to challenge, and occurring within the same procedural relationship – rather than to open the hypothesis of filing the challenge in separate proceedings, because in case the unappealability is acknowledged, it would be necessary, in cases such as the one being focused, to allow the exceptional remedy of the writ of mandamus against a judicial act (unappealable), as we already had the chance to analyze in the previous article. Thus, instead of admitting the exception – which is the action to challenge in separate proceedings – it would be more suitable to interpret the rule regarding the appeals as broadly as possible so as to avoid having to choose another procedure.
In order to illustrate, let us recall that the precedents of the Superior Court of Justice, ruled by the CCP / 73, decided that there should be no retention of the special appeal against an interlocutory decision, when it produces “effects outside the proceedings” – which, happens, for example, in the matters of prescription and peremption, because there is the judgment on the merits, and, therefore, the decision has substantial efficacy. As a matter of fact, these two phenomena related to the dismissal of the proceedings do illustrate what has currently been set forth: if item II of art. 1.015 admits an interlocutory appeal against decisions that deal with “the merits of the case”, the interpreter may not be allowed to restrict the provision, and, in the end, exacerbate the restriction of the appeal. If the law itself determines that the judgment will be rendered on the merits when the judge “decides, ex officio or upon request, on the occurrence of peremption or prescription” (article 487, II), this should guide the understanding of article 1.015, above mentioned.
Among the doctrine, this understanding has been supported: “In the course of the proceedings, it is possible that decisions on the merits are rendered. The judge may, for example, deny the allegation of prescription or peremption, and determine the evidentiary proceedings. An interlocutory appeal may be filed against those decisions, pursuant to art. 1015, item II, in the CCP” (see Fredie Didier Jr., Curso de Direito processual civil: o processo civil nos tribunais, recursos, ações de competência originária de tribunal e querela nullitatis, incidentes de competência originária de tribunal, 13. ed. Salvador: Ed. JusPodivm, 2016, p.223). In this sense, it has already been said that “the interlocutory appeal is admissible not only when the interlocutory on the merits may decide, from the outset, part of the subject-matter of the lawsuit. There are cases in which the decision is on the merits, but it merely dismisses the occurrence of a fact that precludes, modifies or extinguishes the plaintiff’s right, without any definition for the litigation. This is the case, for example, when the judge proceeds with the curative acts and denies the occurrence of prescription or peremption and determines the evidentiary proceedings” (see Luiz Rodrigues Wambier and Eduardo Talamini, Curso Avançado de Processo Civil, vol II, 16a. ed., São Paulo: RT, 2016, p.538). In the case law, which is still relatively incipient, it is becoming a correct understanding that “the judgment that denies the peremption argued in the defense can be challenged by means of an interlocutory appeal, pursuant to art. 1015, item II, in the Code of Civil Procedure/2015” (see interlocutory appeal number 1002114063969-1/001, Court of Justice of Minas Gerais, Rapporteur José Marcos Rodrigues Vieira).
In the same line of reasoning, considering that the equal treatment for the parties, further than being ensured by the law, is in the Federal Constitution, it seems licit to understand that whenever art. 1.015 gives the party a chance to file an interlocutory appeal against a certain matter, the same prerogative must be ensured to the counterparty, concerning the same issue given by the law – and this (the subject or the controversial legal issue) is the criterion which is truly relevant to the law. Thus, as an illustration, when the law establishes temporary reliefs (Article 1015, I), it does not matter whether the judgment was meant to grant or to deny. As a matter of fact, this distinction does not even exist, and, therefore, it can not be made by the interpreter.