Can an additional appeal petition be submitted?

Can an Additional Appeal Petition Be Filed? | Lawyer | Izmir Law Firm | Izmir Lawyer | Efes Law Firm

In the precedent court decision cited below, it was ruled that there is no legal obstacle to a plaintiff submitting a second petition within the appeal period, requesting an appeal regarding a fact not raised in the first petition.

Court of Cassation, 8th Civil Chamber, Case No: 2018/15518, Decision No: 2019/9846

Summary:

The First Instance Court's reasoned decision was served to the plaintiff's attorney in the consolidated case on November 2, 2017. The decision was appealed by the plaintiff's attorney in the consolidated case within the prescribed time limit on November 15, 2017. In an additional petition dated November 16, 2017, submitted within the appeal period, the plaintiff's attorney in the consolidated case raised an objection not mentioned in the initial petition: that the defendant's bank account in the consolidated case is a Swiss Franc account, and that the participation claim was calculated in favor of the plaintiff in the consolidated case by considering this bank account as a Turkish Lira account. The attorney further argued that the Swiss Franc should be converted to Turkish Lira at the current exchange rate and collected with interest, and requested that the First Instance Court's decision be overturned on this ground as well.

The Regional Court of Appeal has determined that any other petitions submitted by the appealing party, even within the legal time limit, do not constitute an appeal petition, and the grounds for appeal stated in these petitions cannot be considered by the Regional Court of Appeal. Therefore, while reviewing the appeal grounds dated 15.11.2017, the objections in the petition dated 16.11.2017, which contains additional grounds for appeal, will not be taken into account.

However, since there is no legal obstacle to the plaintiff's attorney in the defendant-consolidated case raising an appeal regarding a fact not raised in the first petition within the appeal period, the objection regarding the bank account in the plaintiff's attorney's supplementary appeal petition in the defendant-consolidated case should have been evaluated positively or negatively and a decision should have been made accordingly. The failure to evaluate the plaintiff's attorney's appeal regarding the bank account in the defendant-consolidated case is deemed incorrect.

Case:

Following the trial in the case between the parties described above, and after the judgment of the 2nd Family Court, the defendant-plaintiff's attorney in the consolidated case appealed, and the 2nd Civil Chamber of the Regional Court of Appeals rejected the appeal on its merits. Upon the appeal of the Regional Court of Appeals' decision by the defendant-plaintiff's attorney in the consolidated case, the Chamber reviewed the file and considered the matter.

Decision:

The main lawsuit and the consolidated lawsuit concern a claim for participation in the value of the assets. The court partially accepted both the main lawsuit and the consolidated lawsuit. The defendant-plaintiff's attorney in the consolidated case appealed this decision. The 2nd Civil Chamber of the ... Regional Court of Appeals rejected the appeal on its merits, whereupon the defendant-plaintiff's attorney in the consolidated case filed a request for cassation.

The appeal review by the Regional Court of Appeal is limited to the reasons stated in the appeal petition. However, the Regional Court of Appeal...If the court finds a violation of public order, it shall consider it ex officio. (Code of Civil Procedure, Article 355)

The First Instance Court's reasoned decision was served to the plaintiff's attorney in the consolidated case on November 2, 2017. The decision was appealed by the plaintiff's attorney in the consolidated case within the prescribed time limit on November 15, 2017. In an additional petition dated November 16, 2017, submitted within the appeal period, the plaintiff's attorney in the consolidated case raised an objection not mentioned in the initial petition: that the defendant's bank account in the consolidated case is a Swiss Franc account, and that the participation claim was calculated in favor of the plaintiff in the consolidated case by considering this bank account as a Turkish Lira account. The attorney further argued that the Swiss Franc should be converted to Turkish Lira at the current exchange rate and collected with interest, and requested that the First Instance Court's decision be overturned on this ground as well.

The Regional Court of Appeal has determined that any other petitions submitted by the appealing party, even within the legal time limit, do not constitute an appeal petition, and the grounds for appeal stated in these petitions cannot be considered by the Regional Court of Appeal. Therefore, while reviewing the appeal grounds dated 15.11.2017, the objections in the petition dated 16.11.2017, which contains additional grounds for appeal, will not be taken into account.

However, since there is no legal obstacle to the plaintiff's attorney in the defendant-consolidated case raising an appeal regarding a fact not raised in the first petition within the appeal period, the objection regarding the bank account in the plaintiff's attorney's supplementary appeal petition in the defendant-consolidated case should have been evaluated positively or negatively and a decision should have been made accordingly. Therefore, the failure to evaluate the plaintiff's attorney's appeal regarding the bank account in the defendant-consolidated case with the written justification is deemed incorrect.

Conclusion:

The Regional Court of Appeals decision, which was appealed, is hereby REVERSED for the reasons stated above., It was unanimously decided on November 4, 2019, that the other appeals of the plaintiff's attorney in the consolidated case should not be examined at this time due to the grounds for reversal, that the file should be sent to the Regional Court of Appeal that rendered the decision, and a copy of the decision should be sent to the First Instance Court, and that the advance fee should be returned to the appellant upon request..

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