Post by account_disabled on Mar 13, 2024 22:41:33 GMT -6
If the expertise carried out in the knowledge phase was rendered ineffective, the parameters used in it cannot serve as a basis for a new expertise in the settlement phase.
This was the understanding applied by the 3rd Panel of the Superior Court of Justice when recognizing that there was an offense against res judicata in the judge's decision that determined new calculations based on the parameters used in the expert opinion carried out in the knowledge phase and which was subsequently rendered ineffective.
According to the rapporteur of the appeal, Minister Marco Aurélio Bellizze, this decision will give the parties the opportunity to formulate questions and appoint technical assistants to monitor the expert opinion that will determine the actual amount to be reimbursed, in compliance with the broadest guarantee of the adversarial process.
Losses and damages
Originally, a beverage distributor B2B Lead sought compensation for losses and damages resulting from breach of contract. The technical expertise carried out during the knowledge phase indicated that the manufacturer would have to compensate R$18 million.
The state court, in the judgment on motion for clarification, clarified that it upheld the manufacturer's conviction, but rendered the expert opinion ineffective, as it considered elements that were not recognized in the appeal ruling, and therefore decided that another one should be carried out in its place. .
The defendant company questioned in the special appeal the judge's determination, in the settlement, that the same parameters as the first were used in the second examination, with the same facts as their object. For the appellant, such command is not valid, since the previous expert opinion was declared null and void by the ruling.
For the reporting minister, it constituted an offense against res judicata. He stated that the literalness of the judicial command leaves no doubt that the expertise carried out in the knowledge phase had not proven to be consistent with the parameters defined by the condemnatory ruling, justifying the decision to render it ineffective.
“In this context, at the time of liquidation, the magistrate could not send the files to the judicial accounting department, with the recommendation that the calculations be prepared, 'based on the parameters used in the expertise carried out in the knowledge phase'”.
This was the understanding applied by the 3rd Panel of the Superior Court of Justice when recognizing that there was an offense against res judicata in the judge's decision that determined new calculations based on the parameters used in the expert opinion carried out in the knowledge phase and which was subsequently rendered ineffective.
According to the rapporteur of the appeal, Minister Marco Aurélio Bellizze, this decision will give the parties the opportunity to formulate questions and appoint technical assistants to monitor the expert opinion that will determine the actual amount to be reimbursed, in compliance with the broadest guarantee of the adversarial process.
Losses and damages
Originally, a beverage distributor B2B Lead sought compensation for losses and damages resulting from breach of contract. The technical expertise carried out during the knowledge phase indicated that the manufacturer would have to compensate R$18 million.
The state court, in the judgment on motion for clarification, clarified that it upheld the manufacturer's conviction, but rendered the expert opinion ineffective, as it considered elements that were not recognized in the appeal ruling, and therefore decided that another one should be carried out in its place. .
The defendant company questioned in the special appeal the judge's determination, in the settlement, that the same parameters as the first were used in the second examination, with the same facts as their object. For the appellant, such command is not valid, since the previous expert opinion was declared null and void by the ruling.
For the reporting minister, it constituted an offense against res judicata. He stated that the literalness of the judicial command leaves no doubt that the expertise carried out in the knowledge phase had not proven to be consistent with the parameters defined by the condemnatory ruling, justifying the decision to render it ineffective.
“In this context, at the time of liquidation, the magistrate could not send the files to the judicial accounting department, with the recommendation that the calculations be prepared, 'based on the parameters used in the expertise carried out in the knowledge phase'”.