Setting aside of the decision not to enter the appeal in neighbour law due to insufficient appeal request and referral back to the lower court

Facts

Parties and procedural history:

The appellant (owner of the properties [U.] KTN xxx, yyy and zzz) claims that the respondent (operator of a wastewater treatment plant) caused damage to his properties and the buildings and installations erected thereon through construction activities. The appellant initially applied for precautionary taking of evidence under Art. 158 CPC, which was rejected by the District Court of Höfe but referred back for reassessment by the Cantonal Court of Schwyz. After the taking of evidence and the preparation of an expert report (29 August 2014), the proceedings were concluded on 15 February 2016. With a claim filed on 10 January 2017, the appellant sought damages of CHF 817,514.10 as well as reimbursement of procedural costs and party compensation. The District Court of Höfe dismissed the claim with a judgment of 14 December 2021.

The appellant filed an appeal with the Cantonal Court of Schwyz, requesting that the first-instance judgment be set aside and the claim allowed. The Cantonal Court did not enter the appeal (decision of 22 March 2022) on the grounds that the appeal request was formally insufficient. The appellant then filed a civil law appeal with the Federal Supreme Court, requesting that the cantonal decision be set aside and the matter referred back for a decision on the merits.

Legal nature of the proceedings: This is a neighbour law damages claim under Art. 679 CC, against which the appeal to the Federal Supreme Court is open as a last-instance decision under Art. 72 para. 1, Art. 75 para. 1 and Art. 90 FSCA. The amount in dispute exceeds the statutory threshold under Art. 74 para. 1 lit. b FSCA.

Considerations

1. Admissibility of the appeal:

The appeal is admissible as it is directed against a final decision of a last cantonal instance that did not enter an appeal. The appellant is entitled to appeal pursuant to Art. 76 para. 1 FSCA, and the appeal period was observed (Art. 100 para. 1 in conjunction with Art. 46 para. 1 lit. a FSCA).

2. Requirements for appeal requests and prohibition of excessive formalism:

The Federal Supreme Court emphasises that appeal requests under Art. 311 para. 1 CPC must be submitted in writing and with reasons and must contain a reformatory request that, if allowed, can be directly converted into a judgment. However, the prohibition of excessive formalism under Art. 29 para. 1 Cst. and Art. 5 para. 3 Cst. applies, according to which legal requests must be interpreted in good faith. A party must not be held to an unfortunate formulation of its request if its meaning is clear from the grounds, the circumstances of the case or the legal nature of the main issue without further ado.

The Federal Supreme Court refers to its consistent case law, according to which a request for allowance of the claim can be understood as a reformatory request if it is clear from the grounds that the party seeks the respondent’s conviction to pay the claimed amount. This applies in particular if the party was fully unsuccessful in the first-instance proceedings and the appeal is directed against the dismissal of the claim.

3. Interpretation of the appeal request:

The Cantonal Court classified the appellant’s appeal request as formally insufficient because it did not contain a reformatory request in the narrower sense. The Federal Supreme Court disagrees with this view and states that the request for allowance of the claim must be interpreted in good faith as a reformatory request. It is clear from the appeal grounds that the appellant seeks the respondent’s conviction to pay the claimed amount. This interpretation is in line with the Federal Supreme Court’s consistent case law, according to which such a request must not be classified as insufficient (Judgments 4A_159/2017, 5A_399/2016, 5A_400/2016, 4A_73/2014, 4A_349/2013,…