The Superior Court of Justice (“STJ”) understood that there is no condemnation in attorney fees for succumbing to incidents of disregard for the personality of a debtor company, due to the absence of a legal provision, regardless of who caused the incident or succumbed.
In the case under analysis, the incident of disregard of legal personality was dismissed in the first degree, without the conviction of the losing party (creditor) to pay fees to the partners of the company (debtor), demanded in the incident. One of the partners, however, appealed the decision, claiming that he would be entitled to receive fees for having been improperly included in the process.
The Court of Justice of Santa Catarina, in turn, upheld the appeal, considering that the disregard incident would have a similar nature to that of a common procedure, which would justify the conviction of the unsuccessful party in the payment of fees to the lawyer of the winning party.
Against this decision, the unsuccessful party who proposed the incident, appealed to the STJ and was successful.
In his winning vote, Minister Marco Aurélio Bellizze noted that the decision that resolves procedural incidents has an interlocutory nature and, therefore, as it has no sentencing nature, nor is it provided for in art. 85, § 1, of CPC / 15, does not entail condemnation in attorney fees.
The Minister pointed out that, in the specific case, causality cannot be automatically attributed to the partner of the company (defendant) whose disregard was requested, since the disregard incident is an exceptional measure.
On the other hand, Minister Nancy Andrighi consigned that even though there is no express mention of the incident of disregard of the legal personality in art. 85, caput and § 1, of the CPC, there is no reason to interpret restrictively the hypotheses of decisions that deal with merit and, consequently, those that give rise to condemnation in succumbence fees. This position, however, remained unsuccessful.
The judgment on screen ratifies previous understandings of C. STJ that it is not possible to condemn succumbent attorney fees in cases of disregard for the legal personality, attributing an even more restrictive interpretation to art. 85, § 1, of CPC / 15.
Thus, it is an important precedent for reducing the potential risks of creditors who intend to request the disregard of the legal personality of their debtors.
Coauthor: Ulisses Simoes da Silva and Harumi Pinheiro Hioki
