RE: 446/44716 Oct 2020 10:05
PETITION No. 13768 - SP (2020 / 0268915-9)
RAPPORTEUR: MINISTER MOURA RIBEIRO
APPLICANT: DEV MINING SA - RECOVER IN COURT IN
RECOVER COURT
LAWYERS: LUIZ ANTONIO VARELA DONELLI - SP248542
MARCELO BACHILLI AVENDANO - SP338915
ARTHUR MUNIZ PEREIRA BARRETO - SP329196
CAROLINA WRIGHT MACHADO - SP324549
REQUIRED: BANCO BRADESCO CARTÕES SA
LAWYER: ANDRÉ LUÍS FULAN - SP259958
DECISION
This urgent measure was filed aiming to give suspensive effect to the special appeal filed by DEV MINERAÇÃOS / A (MINERADORA) against the judgment of the São Paulo Court of Justice, which, considering an interlocutory appeal handled there, maintained the decision of the first court that ratified the plan and granted its judicial recovery, stating, however, that it must be chosen another index of monetary correction different from what was stipulated, in this case, the TR ..
As stated in the initial petition, the special appeal is still waiting for its first admissibility judgment to be made by the São Paulo Court (e-STJ, fl. 4) .
This, in summary, the report.
DECIDED.
It should be stressed, initially, that the granting of early guardianship is conditioned to the existence of the requirements of the periculum in mora and the fumus boni iuris. Thus, when both requirements are present, which are fundamental, there is no doubt that the precautionary measure should be granted.
The case, however, lacks the elements required to accept the requested measure. The MINERATOR intends that suspensive effect be attributed to a special appeal that was not even subject to an admissibility judgment, as verified in the examination of the records and was referred to above. It happens, however, that the Tribunal ad quem is not responsible for granting a suspensive effect to an appeal that has not yet been examined at the origin, the principle of Precedent 634 of the Supreme Court coming up, as follows:
Summary 634 - It is not for the Supreme Federal Court to grant a precautionary measure to give suspensive effect to an extraordinary appeal that has not yet been the subject of an admissibility judgment at source.
In fact, the best of reasons recommends that you seek such a request from the local court.
Only in exceptional situations is it possible to grant a suspensive effect to a special appeal not yet admitted by the Court of origin, and even then, only when its probability of success has been demonstrated, the risk of perishing of law or teratology in the contested judgment, which is not glimpses, in plan, in this case, notably when the judgment under appeal only suggested the choice of another index of correction.
Therefore, the sign of good law does not appear evident or crystalline, as required by the exceptionality of the situation in which, repeat, there was not even a judgment of admissibility of the special filed.
In these conditions, because one of the essential assumptions for granting the urgent measure is absent, INDEFIRO A LIMINAR. Consequently, EXTINGUISHING
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