Benedito Gonçalves followed established case law in the OAS case.

By Marcos de Vasconcellos, from Counsel

Recently nominated as a candidate for Joaquim Barbosa's seat on the Supreme Federal Court, Minister Benedito Gonçalves of the Superior Court of Justice was accused of favoring businessman Léo Pinheiro of the construction company OAS — which is under investigation in one of the "Lava Jato" operation cases. The decision, which the online magazine Consultor Jurídico had access to, concerns a purely procedural matter and, in short, determines that the case be evaluated by the Court of Justice of Maranhão — without stating whether or not the company is justified in its request to the court.

This refers to Special Appeal 1.349.295-MA, in which the Superior Court of Justice (STJ) decided how Article 530 of the Code of Civil Procedure should be interpreted. The rule states: “Infringement appeals are admissible when the non-unanimous judgment has reversed, on appeal, the judgment on the merits, or has ruled in favor of a rescissory action. If the disagreement is partial, the appeals will be restricted to the matter subject to the divergence.” For the construction company, this would allow the Court of Justice (TJ) to analyze infringement appeals in its case. For the Sanitation Company of the State of Maranhão, it would not be admissible.

The TJ-MA (Court of Justice of Maranhão) said the company was not entitled to file an appeal. The STJ (Superior Court of Justice) ruled that it was. The issue seemed problematic when a wiretap by the Federal Police revealed a message exchanged between the former president of OAS, José Aldemário Pinheiro (known as Léo Pinheiro), and Benedito Gonçalves in 2014, in which the businessman says: “I'm going to Africa on Monday. Are you going to Minister Toffoli's birthday on Sunday? I'll be in Rio on Saturday. Bye” [sic]. For the Federal Police, the messages “demonstrate the close relationship between Léo Pinheiro and Benedito Gonçalves, as well as their close relationship with Minister [Dias] Toffoli [of the Supreme Federal Court]”.

In another intercepted message, a person — presumably Bruno Brasil — tells Pinheiro that the company won a case in the Superior Court of Justice (STJ) by a 3-2 vote, with Benedito Gonçalves voting in favor. The businessman replies, “I need to thank our friend. Congratulations!” [sic]. According to Veja magazine, which reported the case, it was Special Appeal 1.349.295.

procedural path

The case reached the Superior Court of Justice (STJ) after a lawsuit in the Court of Justice of Maranhão (TJ-MA) concerning an administrative act that annulled a company contract was ruled against OAS. In the first instance, the decision had been favorable to the company, but in the TJ-MA, Judge Lourival Serejo, when judging the case, completely disagreed with the understanding adopted by the other members of the 3rd Civil Chamber, ruling in favor of the company.

Based on Judge Serejo's vote, the company filed an appeal seeking to overturn the decision. However, the case's rapporteur denied the appeal. OAS then filed a motion for reconsideration, arguing that denying the appeal violates Article 530 of the Code of Civil Procedure. And this is the issue judged by the Superior Court of Justice (STJ): does the summary dismissal of an appeal against a non-unanimous decision that terminates the proceedings without a judgment on the merits violate Article 530 of the Code of Civil Procedure?

The decision of the TJ-MA (Court of Justice of Maranhão) said no, based on understandings of the STJ (Superior Court of Justice) (REsp 932.119/SC; AgRg no REsp 890246/MA; REsp 923805/PR; REsp 1051376/DF; REsp 923.805/PR; AgRg no AgRg no Ag 656.360/RJ). However, OAS pointed to other precedents from the same court, from which it is possible to conclude that yes (AgRg in Ag 1416144/RS; REsp 1190753/RJ; REsp 503073/MG; REsp 980.191/MS; REsp 920.768/SC; AgRg in REsp 921.896/AL; REsp 728.660/PR; REsp 1100945/RJ; REsp 1.177.775/RS; REsp 980.191/MS).

In judging the case, Minister Benedito Gonçalves, as well as Ministers Arnaldo Esteves Lima and Sérgio Kukina, ruled that denying the appeal goes against article 530 of the CPC (Code of Civil Procedure). In other words, the appeals must be judged by the TJ-MA (Court of Justice of Maranhão). Ministers Arnaldo Esteves de Lima and Napoleão Nunes Maia Filho dissented. Therefore, the STJ (Superior Court of Justice) does not rule in favor of the company on the merits of the issue, but states that the judges of the TJ-MA will have to analyze its arguments before deciding.

According to the First Panel of the Superior Court of Justice (STJ), if the law "did not restrict the admissibility of the appeal only to the substantive issue or the central matter of the dispute, the legal practitioner cannot interpret the rule to the point of creating a restriction not foreseen therein." Thus, the requirement of a procedural requirement not expressly provided for by law "brings insecurity to the parties and hinders the effective administration of justice, especially when there is not always clarity regarding the content of the judgment or ruling." Now, the case, which discusses the possibility of annulling an administrative act that annulled a contract with OAS, returns to the Court of Justice of Maranhão (TJ-MA), which is responsible for judging the merits of the issue.