Joaquin Plaza Rosso, attorney in conventional representation of Mr. Felipe Ossa Guzman and Claro & Co. … to this Court I respectfully state:
By the presentation of June 16, 2023, the plaintiffs filed an appeal for reposition, with an appeal in subsidy, against the June 12, 2023 resolution in Folio 236. That resolution made effective the warning established in the first subparagraph of Article 394 of the CPC against Mountainstar Gold Inc. with respect to the evasive answers of their representative, Mr. Stephen Holt, to the questions that were formulated in assertive terms of the statement of positions attached to Folio 166.
Reposition must be discarded for two reasons. First, it must be declared inadmissible – because of the way attempted by the plaintiffs – since it is not suitable to challenge the resolution of Folio 236. Second, it must be rejected since it is based on a misinterpretation of the absolvent’s answers and the rules governing the diligence of the Acquittal of Positions.
- The Reposition must be declared inadmissible, since it is not the ideal way to challenge the resolution of Folio 236
- According to the wording of Article 181 “[…] an application may be made to the Court that issued the order or decree for its reposition […]” and 187 “All final and interlocutory judgments of first instance are appealable …” of the CPC, the general rule is that orders and decrees are subject to reversal (and exceptionally to subsidiary appeal under Article 188), while final and interlocutory judgments are appealable (and, exceptionally, subject to review).
- The resolution of Folio 236 is an interlocutory judgment of the first degree, since it establishes permanent rights. Since the CPC does not expressly provide a reposition in respect of it, only an appeal may be lodged against it. This is recognized case law:
"[...] the decision rejecting the request to consider the absolvent confessed, has the character of an interlocutory judgment, more precisely, those that establish permanent rights in favor of the parties, and in that context the appeal proceeds, in accordance with Article 187 of the Code of Civil Procedure"
- In this way, the Reposition is not the ideal way to appeal against the resolution of Folio 236, and therefore, must be declared inadmissible.
- The Reposition must be rejected because it is based on a misinterpretation of the absolvent’s responses and the rules governing the diligence of Absolution of Positions
- In the plaintiff’s view, instead of requesting that the warning be enforced, this party should have “requested supplementary clarifications of the responses [of Mr. Stephen Holt]”. That statement is doubly erroneous.
- First it is erroneous because it is based on a misinterpretation of the facts. The evasive nature of the answers given by Mr. Stephen Holt did not allow them to be supplemented by clarifications or complementation. In that sense, the absolvent manifested a radical ignorance of the facts, limiting himself to answering that he did not know them and/or did not remember them at all. Proof of this is that in cases where clarifications or complements were requested, the answers of the absolvent did not vary.
- Second, it is erroneous because it is based on a misinterpretation of the rules governing the acquittal of positions. Contrary to the express wording of Article 394 of the CPC, the plaintiffs intend to introduce a new condition for the warning to be invoked: that, prior to its exercise, during the hearing, a clarification of supplementation of the response has been requested. Thus, faced with an evasive response, it would be the burden of the counterparty to try to convince the evasive absolvent to rectify his conduct. National case law has expressly rejected this argument.
[Case law examples not translated.]
THEREFORE,
I respectfully request this Court: to bear in mind the foregoing at the time of resolving the admissibility and the merits of the reposition.