MountainWest Resources Inc. C.MWR

11777 Reposition filed

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Pauline Chiffelle Horsel, attorney in conventional representation of the defendant Mr. Hector Mardoqueo Unda Llanos … C 11777-2020, to this Court I respectfully state:
 
In accordance with the provisions of Article 181 of the Code of Civil Procedure, I come to bring and appeal of reposition against the resolution issued by this Court dated February 27 of the current year, Folio 99, in that part that pronounced on the request of this party of Folio 94, which simply ruled “this to the merit of the case” and, against the certification of Folio 97 of the Judicial Receiver that recorded the lack of attendance of Mr. Hector Unda Llanos to the hearing of acquittal of positions set for Monday, February 26, for the reasons indicated in that brief, notwithstanding which this Court authorized the holding of the hearing, without issuing a pronouncement on the requests made by this party.
 
 
I base the foregoing on the following considerations of fact and law:
 

1. By means of a presentation of Folio 94, on February 22 of this year, that is, three days before the scheduled date of the hearing of acquittal of Mr. Hector Unda Llanos, this party informed the Court that my client was prevented from attending the hearing that would take place the next Monday, February 26.  For this reason, he requested a new hearing be set for that purpose.
2. In view of the fact that this presentation had not been resolved on Monday, February 26, this party appeared before the Court at 9:00 a.m. requesting that the call to the absolvent not be made by the Receiver before this Court ruled on the petition of Folio 94.  However, the Court did not agree, proceeding to make the call and certifying by the Receiver, on Folio 97, the non-appearance of my client.
3. The following day, by means of the Respondent Resolution, this Court simply ruled on the request of this part of Folio 94, “to be on the merits of the case”, so that in practice this Court never analyzed the reasons why this party had justified Mr. Unda’s inability to attend the hearing, and had timely requested the suspension of the hearing.
4. On the other hand, in view of this omission and the certification of Folio 97, the plaintiff has already requested that my client be considered to be confessed, a request that is highly likely that this Court will accede to the plaintiffs request, if this Court does not proceed to analyze what was indicated by this party by Folio 94, all of which obviously causes damage to this party.
5. In effect, as stated in the petition on Folio 94, Mr. Unda Llanos was unable to appear before this Court on Monday, February 26 because he was outside the Metropolitan Region with his family.
6. One the other hand, Article 389 No. 2 of the CPC provides that “those who, due to illness or any other impediment qualified by the Court, are unable to appear at the hearing at which they are required to give evidence” are exempt from appearing “. Obviously, this rule contemplates the possibility of alleging that the absolvent is prevented from appearing, and on the merit of the qualification by the Court of the arguments put forward, it may rule that the absolvent was not obliged to appear.  However, in these proceedings, this Court has failed to rule on this matter.
7. As stated in the petition on Folio 94, and as the other party is well aware, Mr. Unda is a 72 year old adult who suffers from a series of health limitations that prevent him from moving freely to Santiago to attend the hearing in such a short period of time. Even more so when he was on vacation with his family and they only have one car.  All of the foregoing constitutes sufficient impediments to accept the petition of this party in Folio 94.  However, it was not even considered by this Court.
8. At the same time, the fact that the plaintiff has requested that the hearing for the acquittal of Mr. Unda be held in the month of February, since it is a public and well-known fact that it is the month in which most Chileans travel outside of Santiago for vacations, it clearly demonstrates that his objective was precisely to get him to be considered to have categorically confessed to the facts stated in the document, which we are sure are absolutely contradictory to his defense in the present case. Since it was a public and well-known fact, this Court also had to weigh this argument to decide that Mr. Unda was not obligated to appear.
9. For his party, as stated in the petition on Folio 94, Mr. Unda has expressed his willingness to appear before this Court when he returns to the city of Santiago with his family, which is why this party requested timely – 3 days before – the suspension of the hearing set for Monday,
   February 26, and set a new date for the same in the month of March.  However, this Court, without even analyzing the request in Folio 94, authorized the call to be made by the Receiver on February 26 of this year, giving rise to the certification of Folio 97, and subsequently, it ruled by means of the appealed resolution “to be on the merits of the case”, without regarding the petition in Folio 94.
10. If all of the above were not sufficient, as stated in the petition on Folio 94, Article 388, paragraph 3 of the CPC provides that “if the litigant is outside the territory of the Court hearing the case, his statement shall be taken by a competent court, which shall proceed in accordance with the two preceding paragraphs.” This rule confirms that, if the litigant is outside the jurisdictional territory of the court hearing the case, he is not obliged to appear before it, having the right to have his statement taken before the competent court where he is located, a rule that was also not considered by this Court when authorizing the summons to be made on February 26 of this year, resulting in the certification of Folio 97; and subsequently, to rule “on the merits of the case” in the resolution under appeal.
11. In addition, since the petition in Folio 94 was an ancillary matter to the trial that required a special ruling by the Court, this Court should have dealt with it incidentally, in accordance with Articles 82 and following of the CPC.  Instead, and despite the fact that the ancillary issue had been timely raised by this party, by the ruling under appeal, this Court failed to rule and agreed to certify on Folio 97 the absence of my client, causing serious damage to this party.
12. For his part, as stated in the petition in Folio 94, and as evidenced by the document attached to the Addendum, the plaintiff requested on countless occasions to acquit Mr. Unda Llanos in other judicial proceedings, in none of which he has obtained a judgment favorable to his claims. Consequently, the plaintiff once again asks for the acquittal of Mr. Unda with the sole purpose of harassing him, since the plaintiff knows perfectly well what his version of the facts is regarding the processing of the Tesoro mining concessions for CMN; the reasons why he granted the document of Rendition of Accounts in favor of the latter whose annulment he demands, and this it is in accordance with the law.
13. In view of the foregoing, in accordance with the provisions of the above-mentioned regulations, it was appropriate for this Court to rule on the petition in Folio 94, before the call was made on the day of the hearing, to process it in accordance with the rules for incidents, decreeing the suspension of the hearing for the acquittal of Mr. Unda, in the second summons, until it was resolved. On the contrary, since this Court had not ruled in a timely manner on the petition in Folio 94, the certification of the Receiver was carried out on Folio 97, and the plaintiff intends to consider Mr. Unda confessed, without even having considering the reasons that prevents him from appearing on the day set by this Court.

 
THEREFORE,
 
In accordance with the foregoing and in accordance with the provisions of Articles 82, 85, 87, 181, 388, 389 No. 3 of the CPC and other aforementioned and applicable regulations,
 
IF IT PLEASE THE COURT: To have filed an appeal for reposition against the resolution dated February 27, 2024, on page 99, to admit it for processing and, in short, to annul the Appealed Resolution in that part that rules on the presentation of February 22, 2024, on page 94, and in its place, to accede to the request to set a new day and time for the acquittal of my client.  At the same time, on the basis of the foregoing, the certification in Folio 97 of the case file is null and void. In the alternative, I appeal to the Illustrious Court of Appeals of Santiago, based on the same arguments of fact and law already stated, which I request to be reproduced, so that the Court hearing the appeal, accepts it in whole or in part, modifying the Appealed Resolution in accordance with law.
 
ADDENDUM:  If it please the Court, have as submitted, with citation, the record of the acquittal of position rendered by Mr. Hector Unda Llanos on March 23, 2018, in the proceedings entitled “Lopehandia v. CMN and Unda Llanos, Hector” of the 18^th Civil Court of Santiago, C 3784-2016.