Pauline Chiffelle Horsel and Fernanda Torres Mac-Pherson, attorneys in representation of Compania Minera Nevada SpA. … C 29407-2016, to this Court we respectfully state:
By means of this act, we request this Court to reject in all its parts the request of the plaintiff for measures for better resolution by the plaintiff on April 27, 2024, consisting of decreeing a psychological expert report on the moral damage – allegedly – caused to Mr. Jorge Lopehandia and to have before them the judicial proceedings of C 1912-2001 of the 14
th Civil Court of Santiago and 1160-2002 of the 34th Criminal Court of Santiago, as both are completely inadmissible.
In fact, as will be seen below, (i) the plaintiff did not provide any type of evidence to prove the alleged moral damage from which he suffers, and the purpose of the measures for better resolution the matter is not to make up for the absence of evidentiary activity of the parties. Likewise (ii) it is not appropriate to take into account the proceedings identified by the plaintiff, since they are not related to the subject matter of the lawsuit, in accordance with the requirements of #6 of Article 159 of the Code of Civil Procedure.
- The plaintiff did not provide any type of evidence to prove the alleged moral damage from which he suffers, and the purpose of the measures for better resolution the matter is not to make up for the absence of evidentiary activity of the parties.
- In the first place, the plaintiff requests this Court to decree a measure for better resolution a psychological expert report aimed at proving the moral damage that he would have claimed in the trial, relying on Article 159 #4 of the CPC.
- It is striking that the other party, after claiming no less than $1.600,000,000 as moral damages, “for the state of affliction, pain, uneasiness” caused by the publication that is the subject of the dispute in this case, and knowing that the truthfulness of the damage he alleges is an element of the non-contractual liability that he claims, has not produced any type of evidence at all during the ordinary evidentiary period, which is precisely the corresponding procedural opportunity to prove such moral damage.
- In fact, it is clear from the record that having resumed the evidentiary period after its suspension due to the pandemic caused by the Covid-19 virus, by resolution issued by this Court in Folio 188, dated May 12, 2022, the plaintiff never requested this Court to decree the expert evidence that he is now belatedly requesting – almost two years later.
- In this sense, the plaintiff’s request must necessarily be rejected, since, as this Court is well aware, in civil proceedings and in accordance with Article 1698 of the Civil Code, it is the burden of the parties to produce the relevant and necessary evidence to prove their claims within the evidentiary period. Therefore, both our doctrine and our jurisprudence agree that the purpose of measures for better resolution the matter is only to clarify facts already demonstrated by the parties or specific obscure or doubtful points of evidence already submitted, but in no case to add, complement or supplement the evidentiary activity of the parties.
- Indeed, the Court of Appeals and the Supreme Court, among others, have repeatedly ruled to that effect in the following rulings:
"Even less can it be considered as a ground for nullity that the court has refused to decree as measures for better resolution the practice of such proceedings, since this would amount to contradiction of the legal purpose of the same, since they are not intended to subsidize the evidentiary activity of the parties.”
“(…) It is the burden of the parties to produce the evidence, and within the evidentiary period, they must take the necessary steps for its proper execution, using the necessary means that the law empowers them, to timely remedy any inconveniences to its execution.The measures for better resolution (such as the one that was annulled, related to the requested expert opinion) are not intended to make up for the lack a evidentiary activity of the parties, so that it cannot be considered an omission of an essential procedure not to decree them.”
“Measures for better resolution can only be ordered to supplement or add to the evidence provided by the parties, evidence that can only relate to facts qualified by the court as likely to be proved in the relevant decision.”
- Thus, it is not appropriate in any case to accept the request of the opposing party to order an expert report in accordance with #4 of Article 159 of the CPC, since no evidence has been given by the plaintiff during the evidentiary period decreed in the proceedings in relation to – supposed – moral damage suffered by Mr. Lopehandia, logically no measure could be decreed for better resolution aimed at explaining or clarifying evidence that does not exist.
- Thus, it can only be concluded that the only thing that the opposing party intends through its request is to try and provide a belated solution to its own evidentiary negligence, trying to make use of a procedural tool that in no case is intended to replace its evidentiary activity.
- It is not appropriate to take into account the proceedings identified by the plaintiff, since they are not related to the subject matter of the lawsuit, in accordance with the requirements of #6 of Article 159 of the Code of Civil Procedure.
- Secondly, the plaintiff requested, as a measure for better resolution of the matter that this Court have before it the judicial proceedings C 1912-2001 before the 14th Civil Court of Santiago; and the criminal proceedings that were allegedly processed before the 34th Criminal Court of Santiago under #1160-2002, invoking Articl 159 #6 of the CPC.
- In this regard, it is relevant to remember that #6 of Article 159 of the CPC establishes as a measure for better resolution “The presentation of any other orders that are related to the lawsuit (…)”. Thus, the essential condition that such a measure must be justified is not satisfied in the present case, since as was explained in detail in the contestation to the lawsuit, the file identified by the plaintiff bears no relation to the facts at issue in those proceedings, to the extent that he was not a party to any of those proceedings.
- In fact, the judicial proceeding tried before the 14th Civil Court of Santiago, C 1912-2001, corresponds to an ordinary trial initialed by Mr. Rodolfo Villar Garcia as plaintiff and Compania Minera Nevada Limitada and Mr. Hector Unda Llanos as defendants. In that trial, the plaintiff requested the absolute nullity of a contract of sale signed between CMN, the legal predecessor of out client, and Mr. Rodolfo Villar Garcia, by public deed executed on March 4, 1997, at the Notary Office of Mr. Eduardo Avello Concha, with respect to a series of mining claims in process, be declared null and void, collectively referred to as Amarillos Norte and Amarillos Sur.
- The basis of the action for the absolute nullity of the Contract was that, in the opinion of the plaintiff, Don Rodolfo Villar Garcia, the price of the sale agreed by the parties for the transfer of the “Amarillos Sur” and “Amarillos Norte” claims would have been ridiculous, claiming an alleged lack of cause for the contract.
- However, the action filed by Mr. Rodolfo Villar Garcia was rejected in its entirely by the judge of the first instance in a verdict of March 27, 2010; which was confirmed by the Court of Appeals of Santiago by verdict of December 31, 2023; the Supreme Court also declared the cassation appeal filed against the judgment inadmissible by resolution of September 2, 2014, in form and substance, and the final judgment handed down in that trial was final and enforceable since 2015.
- In more detail, it is relevant to note that the plaintiff, Mr. Jorge Lopehandia Cortes, was not a party to the aforementioned civil trial, nor to the Contract, and that, as can be clearly seen, the conflict just described has no relationship with the possible non-contractual liability of CMN that is claimed in these proceedings, derived from an alleged “injurious “ publication released on March 8, 2012 on the website of the Canadian company Barrick Gold Corporation.
- Secondly, the criminal proceedings that were processed under 1160-2002 before the 34th Criminal Court of Santiago are also completely unrelated to the facts at issue in this case, since it was initiated by means of a criminal complaint by Mr. Rodolfo Villar Garcia for the alleged crime of forgery of a public instrument, also referred to the public deed granted on March 4, 1997, notarized by Mr. Eduardo Avello Concha, which contains the purchase and sale entered into with the legal predecessor of our client for a series of mining claims in process, collectively referred to as Amarillos Norte and Amarillos Sur.
- The parties involved in said criminal proceedings were Mr. Rodolfo Villar Garca, his spouse, Mr. Alejandro Moreno Prohens, and Mr. John Lill, CMN's representative in the signing of the Contract.
- In addition, this case has been completed for more than 15 years, since, after 3 and a half years of investigation, in a decision dated May 12, 2005, which is now enforceable, the Court temporarily dismissed the case on the grounds that the court considered that was no justification of the perpetration of the act that gave rise to the formation of the trial.
- Therefore, and as can be seen again, this criminal case has no bearing on the facts at issue. In fact, not only was the plaintiff not a party to that trial, but it has nothing to do with the non-contractual liability claimed in these proceedings for an alleged crime of forgery of a public instrument investigated in a criminal case that ended 7 years before the publication that gave rise to the present lawsuit took place.
- Consequently, Your Honor, it is evident that the plaintiff’s request to decree measures for better resolution of the matter is absolutely inadmissible, since none of the legal requirements that must be met in accordance with Article 159 of the CPC are verified, and his request is intended solely to continue to prolong the present trial – which has already lasted 8 years – with the request for dilatory and useless steps for the issuance of the final verdict.
THEREFORE,
We respectfully request this Court: To accede to the request and to reject the measures for better resolution requested by the plaintiff.