Background
A buyer sought lost-profit damages for a developer’s delay in delivering real property. The trial court rejected the claim, but the court of origin reversed and ordered the developer to pay monthly damages equal to 0.5% of the updated contract value from August 28 through December 13, 2022, adjusted by the INCC construction-cost index and carrying interest of 1% per month from service of process.
The Superior Court of Justice previously considered part of the developer’s special appeal but denied relief. It concluded that the lower court had adequately addressed the relevant issues and that reconsidering its fact-dependent determination—that COVID-19 and related government decrees did not excuse the delay—would require reexamining evidence, contrary to STJ Precedent No. 7. The developer then sought clarification, alleging that the court had failed to distinguish prohibited evidentiary review from permissible legal recharacterization of undisputed facts and had inadequately addressed state and municipal restriction decrees.
The Court’s Holding
The Fourth Panel unanimously rejected the motion for clarification. It held that the challenged decision contained no omission or obscurity: the decision had addressed the decrees, the asserted external fortuitous event, and the lower court’s findings that construction was expressly permitted under Porto Alegre Municipal Decrees Nos. 20,549/2020 and 20,623/2020. Altering the lower court’s conclusion would require reassessing the factual and evidentiary record, which STJ Precedent No. 7 forbids in a special appeal.
The court emphasized that motions for clarification serve only to clarify obscurity, eliminate contradiction, remedy omission, or correct a material error; they cannot be used to change the court’s reasoning or retry the case. It declined to impose the requested penalty under Code of Civil Procedure article 1,026(2) because the motion had not yet been shown to be dilatory, but warned that renewed motions on the same issue could trigger a 2% penalty based on the updated amount in controversy.
Key Takeaways
- A party cannot use a motion for clarification merely to obtain reconsideration of an unfavorable result.
- The STJ treated the proposed reassessment of whether pandemic restrictions excused this particular construction delay as an impermissible reexamination of facts and evidence.
- Rejection of a clarification motion does not automatically justify a procedural penalty; dilatory intent must be present.
Why It Matters
The decision leaves intact the developer’s liability for lost profits arising from the delayed property delivery, while resting on appellate-procedure grounds rather than establishing that the COVID-19 pandemic can never qualify as a fortuitous event. For practitioners, it illustrates the difficulty of recasting a record-dependent challenge as the purely legal recharacterization of undisputed facts in order to avoid STJ Precedent No. 7.