Background
The underlying action sought rescission of a real estate purchase agreement and repayment of amounts paid. The São Paulo Court of Justice upheld deductions for brokerage fees, property-tax debts, and maintenance charges, but rejected a land-use fee because no construction on the lot had been proved. It also held that deducting a contractual penalty and administrative expenses in addition to a 10% retention would constitute double recovery.
RVM Empreendimentos Imobiliários and another defendant pursued a special appeal, alleging that the state court had violated Article 32-A(III) of Law No. 6,766/1979 and had departed from other decisions. After the special appeal was denied admission, the presidency of the Superior Court of Justice considered the ensuing interlocutory appeal but declined to consider the special appeal because the statutory issue had not been preserved. The defendants then filed an internal appeal to the Fourth Panel.
The Court’s Holding
The Fourth Panel unanimously denied the internal appeal. It held that the São Paulo court had not analyzed the normative content of Article 32-A(III), so the defendants’ argument was not properly prequestioned—that is, raised and decided below as required for review by the Superior Court of Justice. STF Precedents 282 and 356 therefore barred consideration of the issue.
The court rejected the defendants’ contention that the state appellate decision had expressly preserved the matter for higher review. It also held that invoking conflicting case law under Article 105(III)(c) of the Constitution did not avoid the preservation defect: a special appeal based on jurisprudential divergence likewise requires prior consideration of the relevant statutory issue by the lower court. The panel therefore left the challenged admissibility ruling intact without deciding whether the claimed contractual penalty was substantively permissible.
Key Takeaways
- A statutory issue cannot be considered on special appeal unless the lower court debated and decided it.
- The prequestioning requirement applies both to claims of statutory violation and to claims based on conflicting case law.
- The STJ did not resolve the merits of the developers’ argument for a penalty calculated as 10% of the updated contract value.
Why It Matters
The decision underscores that parties seeking review by Brazil’s Superior Court of Justice must secure a lower-court ruling on the precise federal statutory issue they intend to present. Merely invoking the statute or asserting that an issue was preserved does not suffice when the appealed decision did not address its normative content.
The ruling is also a caution against treating jurisprudential divergence as an independent route around preservation requirements. Even when a party identifies an allegedly analogous STJ decision, the underlying legal question must first have been considered by the court of origin.