Background
Fabrício Assad sought to pursue a special appeal before Brazil’s Superior Tribunal de Justiça (STJ). The decision refusing to admit that appeal rested on four grounds: the STJ could not review an alleged violation of state law; there was no violation of article 489 of the Code of Civil Procedure; STJ Precedent 7 barred reconsideration of the factual record; and, under STJ Precedent 13, Assad had not adequately demonstrated the asserted conflict among judicial decisions.
The STJ’s President declined to consider Assad’s agravo em recurso especial because his petition did not specifically challenge every ground supporting inadmissibility. Assad filed an internal appeal, asserting that he had addressed the grounds and again presenting arguments concerning the merits. The opposing party, although duly notified, filed no response.
The Court’s Holding
The Fourth Panel unanimously denied the internal appeal and left the President’s decision in place. It found that Assad had not specifically and consistently challenged the conclusion that he failed to demonstrate the alleged conflict among judicial decisions. Reiterating merits arguments did not cure that omission.
The court held that the principle of appellate dialectics requires an appellant to explain specifically why each ground of the challenged decision is wrong, whether because of procedural or substantive error. Failure to do so makes the appeal inadmissible under article 932(III) of the 2015 Code of Civil Procedure and article 253, sole paragraph, item I, of the STJ’s Internal Rules. Following the STJ Special Court’s settled approach, the Panel emphasized that every ground for refusing a special appeal must be challenged, regardless of whether the grounds are autonomous.
Key Takeaways
- An agravo seeking review of a decision that refused a special appeal must specifically challenge every ground supporting that refusal.
- Generic assertions and renewed arguments on the underlying merits do not satisfy the requirement of specific appellate argument.
- An internal appeal cannot repair a failure to challenge a ground at the preceding appellate stage.
Why It Matters
The decision underscores the strict issue-preservation requirements governing access to the STJ. Counsel challenging the inadmissibility of a special appeal must respond individually and concretely to each stated barrier; leaving even one ground unanswered may prevent review without any consideration of the merits.