With the entry into force of the Brazilian Code of Civil Procedure of 2015, the rules governing attorneys’ fees underwent significant changes, including the introduction of appellate attorneys’ fees under Article 85 of the CPC. Among these innovations, a recurring question concerns the applicability of such fees in interlocutory appeals (agravos de instrumento).
Based on a joint reading of paragraphs 1 and 11 of Article 85, the article examines the limits of appellate fee awards. Although the statute provides for the fixing of attorneys’ fees at various stages of the proceedings, the increase of fees at the appellate level is expressly conditioned on the existence of a prior award of attorneys’ fees at first instance.
In this context, the article argues that appellate attorneys’ fees are only due in interlocutory appeals challenging decisions that effectively resolve the merits of the dispute — even partially — or that otherwise entail a ruling on attorneys’ fees. Conversely, no appellate fees are awarded when the appeal is directed against purely procedural decisions that do not involve a determination of sucumbência.
This interpretation has been endorsed by several courts and supported by legal scholarship, reinforcing that the award of appellate attorneys’ fees in interlocutory appeals must follow objective criteria and remain consistent with the purpose and limits of the statutory framework.
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