By: Romelio Hernández

On April 1999, the First Court of Appeals from the Fifteen Circuit in Mexicali, Baja California, reached a ruling that comes to represent a truly monumental change in our judicial system to the res judicata principal followed on Constitutional Injunction Proceedings (amparo). It is well known that on all type of proceedings in Mexico, the last word on legal issues raised during a case, goes to our Federal Courts through constitutional injunction proceedings (amparo), either through trial courts (amparo indirecto) or through courts of appeal (amparo directo).

It is well known also that a final judgment in constitutional injunction proceedings along with a petition for review ruling or petition denial (considered on both cases as a writ of execution) from a trial court is the last decision on a controversy and is considered as res judicata unless, the writ of execution (ejecutoria) has been issued by a trial court and there has been a third party involved that was not properly summoned to court or not served at all but was sentenced by the judgment, and he files a petition for review at the court of appeals, but again, only on those cases where a writ of execution was granted by the trial court and not by the court of appeals. At least that was the rule of law followed by our judicial system in the past due to a binding ruling contained on case file 33/93, reached by our Nation's Supreme Court on March 3, 1998.

Surprisingly however, maybe even turning away from the prevailing rule of law or reaching into an unexplored area because of its doubtful and poorly encouraging criteria, our Circuit Court of Appeals was able to remand the trial's court judgment and nullify the effects of a writ of execution, even when such writ of execution was granted as part of an appeal process by a another circuit court of appeals with the same level of authority.

With what has become an outstanding triumph to our Firm and to our clients, we were able to obtain a reversed judgment on a constitutional injunction proceeding's final ruling that was considered res judicata, with a remand order to dismiss action against our clients and start the constitutional procedure all over again with proper service of process. Such an approach was considered by us inevitable when our clients were clearly aggrieved by the judgment and not stated as third parties involved in the controversy during their statement of facts in the plaintiff's complaint.

The controversy involved a large extension of land which property belong to our clients, but was disputed by one of the most powerful agrarian groups in the region, Ejido Francisco Villa. On this particular matter, the Ejido claimed to be the rightful owner entitled over our land, thanks to a final judgment issued by a federal trial court (and confirmed by a court of appeal), that had physically relocated a large extension of land granted by the federal administrative branch office of agrarian affairs in past years. Such ruling along with its appeal confirmation was achieved -as argued by us during the case- by means of a fraudulent strategy followed by plaintiff on which they deliberately withheld important information during their statement of facts in the complaint, as to third parties involved that would eventually be aggrieved by any outcome of the case.

Our scenario of the case along with those of many others that were in the same situation was less than encouraging due to the already known strong binding effects of a judgment that has already been confirmed by a court of appeal, but nevertheless, our circuit court of appeal saw a truly admirable opinion on its part, when reaching a final decision on such case, it remanded such ruling from the trial court, with dismiss of action and ordering to start the constitutional proceeding with proper service of process to our clients.

The controversy ended in our clients favor through settlement with the Ejido, by which they fully recognized our ownership over the disputed land, with full guarantee of peaceful possession rights over said territory.

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