Post by
MTStack on Jul 26, 2024 9:15am
And another one gone, and another one gone ...
Some background. HUL filed an appeal to overturn the resoltion that found him confessed to the statement of position after he failed to attend hearings in C 11177-2020. This is the case JL filed against CMN and HUL to negate the transfer of the Tesoro concessions. About a month later, on April 5, 2024, JL filed an appeal 5258-2024, claiming that the appeal that HUL filed was inadmissible. Yesterday, the Appeals Court of Santiago rejected JL's appeal. This means that HUL's appeal can move forward.
The Appeals Court decision follows:
Court of Appeals of Santiago
Santiago, July 25, 2024
FIRST: Whereas, Mr. Juan Guillermo Torres Fuentealba, attorney in representation of the plaintiff Mr. Jorge Rodrigo Lopehandia Cortes, appeared in court in the ordinary case of nullity, named Lopehandia v. Unda, Rol C 11777-2020, of the 13th Civil Court of Santiago, and filed an appeal of false fact against the resolution of April 3, 2024 issued by the judge a quo, which granted the subsidiary appeal filed by the defendant Hector Unda Llano, against the resolution dated March 5, 2024, that decreed the warning of said defendant to consider him confessed to the facts actually stated in the statement of positions by twice missing the hearings of acquittal of positions.
He maintains that the aforementioned resolution is an interlocutory judgment of the first degree because it grants permanent rights to the parted and, in this context, the appeal is inadmissible in accordance with Article 187 of the Code of Civil Procedure.
He explained that, given the legal nature of the resolution. it was subject only to appeal and not to an appeal by reposition with subsidiary appeal.
He requests that the de facto appeal, revoking the resolution and rejected the appeal filed as inadmissible.
SECOND: Whereas, from the review of the judicial computer system of the case C 11177-2020 of the 13th Civil Court of Santiago, it is clear that the background of the appeal was resolved by resolution dated March 5, 2024, that resolved: “In view of the merits of the background and in accordance with the provisions of Article 394 of the Code of Civil Procedure, the defendant, Mr. Hector Mardoqueo Unda Llanos, is to be deemed to have confessed in his absence, of all the facts formulated in the affirmative manner in the statement of positions, which for these purposes is ordered to be opened and added to the record once this resolution is signed.”
On March 11, 2024, the defendant Hector Unda Llanos filed an appeal for reposition with an appeal in subsidy, against the aforementioned resolution, which had him confessed, due to his failure to attend the acquittal hearing on February 26 in progress.
For its part, on April 3 of this year, the Court provided the case of challenge in terms of: “ Considering that the arguments of the appellant do not succeed in distorting what has already been decided and especially taking into consideration what has been previously resolved, the reposition filed is rejected. With regard to the subsidiary request; An appeal was filed on March 11, 2024, against the resolution dated March 5, 2024, Folio 101, is granted only in the devolutive effect, and the proceeding must be submitted to the Illustrious Court of Appeals of Santiago, via interconnection, for its knowledge and resolution.”
THIRD: Whereas, in accordance with the foregoing, the resolution of March 5, 2024 was appealed by the defendant, which is an interlocutory judgment, and said appeal is admissible in accordance with Article 187 of the Code of Civil Procedure.
FOURTH: Whereas the circumstances in which the appeal has been filed, in a subsidiary manner to the reposition, does not imply that it is not appropriate to have appealed against an appealable resolution, especially if the right to appeal of the party is considered.
For these considerations and in accordance with the provisions of Articles 158, 187, and 203 of the Code of Civil Procedure, the appeal of fact (false) filed by attorney Juan Guillermo Torres Fuentealba, on behalf of Mr. Jorge Rodrigo Lopehandia Cortes, against the resolution of April 3, 2024 issued by the 13th Civil Court of Santiago, in C 11177-2020, is REJECTED,