Appeals based on conflicting rulings are part of the daily practice of lawyers working before the Superior Courts. Therefore, knowing the rules applicable to this type of appeal is of paramount importance when drafting and filing the appeal.

In short, appeals based on conflicting rulings play a very important role in the current system of the Code of Civil Procedure . This is because, according to article 926 of the CPC, the courts have a duty to standardize their jurisprudence, keeping it stable, consistent, and coherent.

It is worth mentioning that the purpose of appeals based on conflicting rulings is to standardize the understanding of the Court, whether the Supreme Federal Court (STF) or the Superior Court of Justice (STJ), regarding the matter at hand, when there is disagreement between its divisions.

When is it possible to file an appeal based on conflicting rulings?

There are some requirements to be analyzed when discussing the possibility of filing an appeal based on conflicting rulings.

In general terms, they may be filed when the Panel (or Section), in judging the Extraordinary Appeal or Special Appeal: (i) disagrees with another Panel, Section, Special Court or Full Court of the same Tribunal; and (ii) this disagreement is current.

Proof of discrepancy 

In turn, when preparing the appeal, it is up to the appellant to analytically demonstrate the divergence between a) the appealed judgment (from the judging panel) and b) the precedent judgment (from another panel, section, special court, or full court). 

Let me give you an example! To give you an idea of ​​the care that must be taken when drafting this appeal, Article 266, § 4 of the Internal Regulations of the Superior Court of Justice (STJ) states that:

"The appellant shall prove the divergence with a certificate, copy or citation from an official or accredited repository of jurisprudence, including electronic media, in which the dissenting judgment was published, or with the reproduction of a judgment available on the internet, indicating the respective source, and shall mention the circumstances that identify or resemble the cases being compared."

This is just one example, but it already demonstrates the care that a lawyer must take when drafting and preparing the documents for filing this appeal.

Reference to a summary judgment is insufficient to prove the divergence.

This is a topic that has already been discussed in the Superior Courts. When drafting appeals based on conflicting rulings, lawyers cannot simply refer to the precedent to demonstrate the divergence.

According to the Superior Court of Justice (STJ), simply citing a precedent from the STJ is not sufficient to establish a divergence between the Court's decisions on the same subject; a divergence must be established between the challenged ruling and the judgments that served as the basis for issuing the precedent. 

Therefore, in order to prove that there is a divergence between decisions, the party must present opposing judgments; the mere presentation of a summary is not sufficient.

The jurisdiction for judging appeals based on conflicting rulings

Once appeals based on conflicting rulings have been filed to standardize the understanding of the Court's Chambers, these Chambers cannot judge them; the higher bodies of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) are competent to do so.

Therefore, jurisdiction for judgment may lie with:

a) of the Plenary of the Supreme Federal Court ( as per article 336 of the Internal Regulations of the STF ).

b) from the Special Court of the Superior Court of Justice, in case of divergence between the Sections of this Court ( according to article 266 of the Internal Regulations of the STJ ).

c) from the Section of the Superior Court of Justice, in case of divergence between the panels of this Court ( according to article 266 of the Internal Regulations of the STJ ).

Therefore, when drafting an appeal based on conflicting rulings, in addition to knowing the express provisions of the CPC (Code of Civil Procedure), it is recommended that you also be familiar with the Internal Regulations of the Courts regarding this type of appeal.

The outcome of the judgment on the appeals for divergence.

As stated, the purpose of appeals based on conflicting rulings is to standardize the Court's understanding. At the same time, the Court may correct the situation outlined in the appeal and apply the new legal argument to the specific case.

In other words, once the appeals based on conflicting rulings are accepted (that is, after a positive admissibility judgment), the scope of matters to be discussed is total, both with regard to the matters that are the subject of the appeals and to matters of public order.

Thus, acknowledging the divergence, Professor Nelson Nery teaches that the higher body of the STF or STJ will proceed chronologically as follows: 

a) will establish the new legal thesis that should prevail on that issue; 

b) it may overturn the appealed judgment and "re-judge" the matter discussed therein or uphold it, if it considers that the prevailing thesis is not in the interest of the appellant.

In this way, the Court, after confirming the existence of the divergence, will establish the legal precedent and apply it to the specific case. 

Matters that may be subject to appeals based on conflicting rulings.

In his Commentary on the Code of Civil Procedure, Professor Nelson Nery points out that there is no restriction in the law, nor in the Internal Regulations (whether of the Supreme Federal Court or the Superior Court of Justice), on which matters may be the subject of an appeal based on conflicting rulings. 

Therefore, both procedural and substantive law matters can be the subject of a judgment on the merits in this type of appeal. 

In turn, the professor also argues that it is irrelevant to the admissibility of appeals based on conflicting rulings whether the Extraordinary Appeal or the Special Appeal was admitted or not. Thus, in any case (admitted or not admitted), if there is a conflict of rulings, the appeal will be admissible.

Can the amount of damages for moral harm be subject to appeal based on conflicting rulings?

This is another important issue discussed within the Superior Court of Justice, and due to its impact, Summary Judgment 420 was issued to address the matter.

It was decided that it is inadmissible, in appeals based on conflicting rulings, to discuss the amount of compensation for moral damages.

This is because, as explained, the purpose of appeals based on conflicting rulings is to discuss legal theories in order to standardize case law.

In turn, in the discussion about compensation amounts for moral damages, there is no single "legal thesis," but rather a difference in how the compensation amount is determined, given the particularities of each specific case, which prevents comparison.

Can a single-judge decision be considered a paradigm decision?

When the CPC (Brazilian Code of Civil Procedure) mentions the possibility of filing an appeal based on conflicting rulings, it necessarily states that the appealed decision must be a judgment, that is, a collegial decision.

This refers to the opening paragraph of Article 1.043 of the CPC (Code of Civil Procedure). Therefore, it is not possible to file an appeal based on conflicting rulings against a single-judge decision, that is, one issued by the reporting judge.

Finally, I would like to inform you that there are several articles here on the IDP Online blog about Civil Procedural Law , should you wish to delve deeper into other topics.

Discover the IDP's postgraduate program in Civil Procedure!

With IDP Online's postgraduate program, you can study from anywhere in Brazil, including exchanging ideas live with the country's most renowned professors. This will greatly facilitate your learning journey, as you will have the support of the leading professionals in the field.

Also, if you enjoyed this article, be sure to subscribe to our newsletter! 

By subscribing to our newsletter, you'll have first-hand access to IDP articles, including the latest news from the legal world, free IDP materials, and recommendations from market experts!

Bibliographic references

Annotated Code of Civil Procedure, by professors Nelson Nery Junior and Rosa Maria de Andrade Nery, published by Revista dos Tribunais.