About The Conditions That Can Be Placed On An Appeal in Panama...
Thursday, August 20 2009 @ 04:01 PM EDT
Contributed by: Don Winner
"Effects" and "Conditions" on Appeals: I asked to have this element of Panamanian law explained to me in detail in order to more fully understand what is going on. There are three "effects" or "conditions" which can be placed on a legal case that has been appealed to a higher authority;
- Suspensivo: The first condition is "suspensivo." Like it sounds, if a lower court places this condition on a case that's being appealed, then it's like the case is on hold and no one can do anything until the appeal is decided.
- Devolutivo: If this condition is placed on an appeal, then it means the decision of the lower court is still valid and in effect while the case is being considered by a higher authority. This kind of condition is frequently placed on child support cases, for example. Let's say a lower court decides a parent has to pay $300 per month in child support payments, and the person who has to pay appeals that decision because they think it's too much money. The judge can forward the case in the condition of "devolutivo" which basically means the person who is appealing the decision would still have to pay the $300 dollars per month in child support while the appeal is being considered.
- Diferido: This third category of condition is very similar to "suspensivo" but it's only used for appeals of decisions made in "incidents". In lawsuits often times there are little sub-decisions that have to be made within a case. Say for example one side of the dispute wants to submit a piece of evidence and the judge rules that the evidence cannot be accepted for whatever reason. The side that wanted the evidence submitted can then appeal that decision, creating an "incident" within the context of the larger case. These kinds of appeals can be forwarded to a higher authority to be resolved with the condition of "diferido" attached, meaning that any action associated with that sub-set of information is in effect suspended while the higher authority considers the appeal, but the lower court can still continue to work on the rest of the case in the meantime. It's like splitting the difference.
You Have To Ask: Specifically, in order for any of these conditions to be applied to a case that has been appealed to a higher court, the lower court has to forward the case with the condition defined. The only way that can happen is if the person who is requesting the appeal specifically requests for one of the three conditions to be applied. And, that request has to be specifically granted by the lower court. That is to say, there will be something in the case file indicating the case was forwarded to the higher authority with the condition attached. If it's not there, then there's no limiting condition on the case.
The Default Is The Last Decision: In the Millers case, the most recent decision made by the Governor, confirmed by the Third Superior Tribunal , is the most recent decision made by the highest authority thus far. That means, lacking any of the above described conditions, then the decision of the Governor, that the private lands owned by Citricos S.A. reverts to them, it's a private road, and they company does not have to allow the Millers or anyone else to use it as a public road. This is the most common way cases that have been appealed to the Supreme Court are handled - whatever the lower court said stands until they review the case and rule.
The "Other" Default: There's another possibility. It's possible one could argue the case is "suspended" until the Supreme Court rules. If that's the case, and since the Millers started this action with an administrative process, asking to have a private piece of property converted into a public road, then all decisions made by all lower authorities would be suspended, including that of the Mayor who ruled in favor of the Millers in the first place. If that's the case, then the land is still considered private and Citricos S.A. reverts right back to where they were before the original case was filed in the first place - meaning it's private and the Millers can't use it.
The Tightrope Option: There's another possibility - that the lawyers for the Millers filed a request to have the appeal forwarded to the Supreme Court with the "suspensivo" condition attached, but only and specifically as applied to the decision of the Governor. In other words, the only way the Millers can still be able to legally use that road would be if the Third Superior Tribunal forwarded the case specifically in that condition, suspending the decision of the Governor while still allowing the decision of the Mayor of Dolega to stand. I doubt they would have done that, considering the tribunal decided to uphold the decision of the Governor in the first place. Anyway, this "tightrope option," if it was done, is really the only possible way the Millers could make any claim that they have a legal right to use that road.
This Was What "Anita's Husband" Was Talking About: These kinds of conditions that can be applied to appeals is what that guy was trying to describe on the phone when he called me to say the lower court decisions were "nullified." And, I suspect his wife is still either just flat wrong or confused about the implications of this appeal and the current legal status of that particular stretch of land.
Screaming Rabid Lawyers: Lawyers don't like it when I call their bluff. I received this in email last night from someone named Abdiel Argel Pitty [firstname.lastname@example.org] who I have to assume is a lawyer working for the Millers;
- "LISTEN TO THE PEOPLE. CITRICOS HAS LOST ALL CASES OF EASEMENT (SERVIDUMBRE) AND THIS IS A TRIUMPH, NO DISCUSSION, NO MORE LIES, THE LAW IS FOR ALL. The appeal suspends the process. This is a success having removed it from the black hands of CORRUPT CHIRICANOS."
Fire That Guy: He said "the appeal suspends the process." OK, if that's the status of this case, then the process is suspended, right? Fine, that means the access road running through the orange grove owned by Citricos S.A. reverts to being private property, just like it was before the process started. I would ask this lawyer if he is from Chiriqui - and if so does his statement mean he's corrupt as well? And furthermore, Citricos S.A. has most certainly NOT "lost all cases of easement..." They won this case. This is what I suspect is going on. These lawyers managed to convince the Millers that "we won, we're winning" when in fact they have most resoundingly lost this case. And, the way I read it, their chances of winning this case in the Supreme Court are slim to none.
"They Have Money For Lawyers..." Wise man. I was discussing some of the details of this case with a different lawyer today, and his observation was that "they could have just taken all of the money they spent on lawyers, and used that to build their road instead." Hey, no kidding. That would have been easier, faster, cheaper, and a guaranteed solution. The lawyers only get paid when there's a conflict. As soon as the conflict goes away, so does their paycheck. Expect the lawyers to urge you to fight to the bitter end, till death, or at least until you run out of money...
The Case Is Here: The nice part is that while I'm a long way from Dolega, the Supreme Court is right up the street. Maybe sometime next week I'll motor up there and check out this case file. I want to ask the Secretary of the Administrative Court to specifically explain to me the current status of this case, with regards to the alleged "suspension" of the case since it's on appeal, and I want to see if the lower court forwarded the case with any of the above mentioned conditions attached.
The Citricos S.A. Lawyers: Also, I want to talk to the lawyers who are working this case for Citricos S.A. - mostly because I have very little faith in anything coming from the lawyers for the other side. They have lost, are losing, and it seems to me they might have misrepresented the status of this case to their clients. Here's what I know for a fact - someone is bullshitting somebody. Either the Millers are bullshitting me, or the lawyers are bullshitting them, but in the end it still stinks around here. Anyway, I'm going to talk about all of these various possibilities with the Citricos S.A. lawyers to get their take on the whole thing. Just because I want to know the truth. Thanks, Rusty.
Copyright 2009 by Don Winner for Panama-Guide.com. Go ahead and use whatever you like as long as you credit the source. Salud.