STJ will decide on setting succumbent fees for equitable appreciation in high value cases

The Special Court of the Superior Court of Justice (STJ), by majority, affected for judgment according to the rite of the repetitive REsp 1.877.883 / SP and REsp 1.850.512 / SP, in order to analyze controversy involving the setting of the attorney fees of succumbence for equitable appreciation by the magistrate, delimited as follows: “definition of the scope of the rule inserted in § 8 of article 85 of the Code of Civil Procedure in cases where the value of the cause or the benefit of the demand is high”, is not restricting to cases of public or private law.

The eighth paragraph of article 85 of CPC / 2015 provides that “the sentence will condemn the loser to pay fees to the winner’s attorney … in cases where the economic benefit is inestimable or negligible, or even when the value of the cause is very low, the judge will set the amount of the fees for equitable appraisal, observing the provisions of the paragraphs of § 2 ”, which are the degree of professional zeal, the time required for your service.

Both specific cases of the special resources affected deal with the annulment of tax assessment, with the Treasury as part of it. However, in one of them, the appeal is to reform the judgment to exclude arbitration of an amount considered excessive, based on Article 85, § 3, CPC / 2015. In the other, exclude the application of article 85, paragraph 8, CPC / 2015, with the argument that the fees must be increased under the terms of article 85, paragraph 3, CPC / 2015.

Minister Luis Felipe Salomão in his vote against the affectation highlighted that there is no mature understanding regarding this issue, considering that the Second Section consolidated the understanding in the sense that “§ 2 of article 85 conveys the general rule, of mandatory application” , and “§ 8 of article 85 transmits an exceptional rule, of subsidiary application” (REsp 1.746.072 / PR). However, in the First Section “there are several judgments in which it is allowed to set the attorney’s fees for equity, based on § 8 of article 85 of CPC / 2015, which result in an excessive amount”.

Different institutions were invited to act on the deed as amicus curiae, such as, for example, the Brazilian Bar Association, the Union, the National College of Attorneys General of the States and the Federal District, the Brazilian Institute of Procedural Law and the North and Northeast Association of Process Teachers.

Finally, it should be noted that the determination of national suspension of cases that deal with the matter delimited in the controversy was dismissed, understanding that “the enormous scope of the subject under discussion … would cause the suspension of an incalculable number of causes in order to deal with a topic that does not constitute the core of the demands ”.

Wilson Sales Belchior