Inadmissibility of appeals against an interlocutory remittal decision on the definitive registration of a builders' and contractors' statutory lien, due to failure to cumulatively meet the conditions of art. 93 para. 1 let. b FSCA

Facts

The dispute concerns a property development on plots in the municipality of [U.] , on which the company [MM. SA] built a development of seventeen chalets and an underground car park. The plots were subject to condominium ownership (PPE), with twenty shares constituted by notarial deeds of 27 December 2006. [MM. SA] subsequently sold the apartment units and concluded three general contractor agreements with [C1. SA] , as well as several amendments.

On 9 May 2011, [MM. SA] contested the general contractor's final statement, in particular the item 'Exterior works' under amendment no. 10. On 17 June 2011, at the request of [C1. SA] , the District Judge of Sierre ordered the provisional annotation of a builders' and contractors' statutory lien in the amount of CHF 4,660,351.35, apportioned among the PPE shares. By decision of 29 March 2012, confirmed on 26 June 2012 by the Cantonal Court of Valais, this annotation was maintained and a deadline of 1 November 2012 was set for requesting definitive registration.

On 1 November 2012, [C1. SA] brought an action for definitive registration. It was replaced by [C. SA] following the takeover of its assets and liabilities. PPE shares were sold during the proceedings, and the new co-owners took over the action. By decision of 25 March 2014, the District Judge admitted the joinder of [E.] against [D.] , a former owner.

By decision of 22 August 2017, the District Judge dismissed the action for definitive registration, ordered the deletion of the annotations, and dismissed the action for payment brought by [E.] against [D.] . By judgment of 27 February 2020, the Civil Court II of the Cantonal Court of Valais admitted the appeal of [C. SA] , rejected the objections of lack of active standing, non-compliance with the validation period, and expiry (art. 839 para. 2 aCC), and remitted the matter to the District Judge. The latter must examine whether the deadline applies to all works on both plots (parcels no. 652 and 658), the question of the functional unity of the contracts, and then determine the personal claim of [C. SA] and the possible claim of [E.] against [D.] in order to fix the sum secured by the lien.

The appellants, [A. SA] and [B.] (5A_300/2020), [D.] (5A_305/2020), and several co-owners represented by the same lawyer (5A_306/2020), each lodged a civil law appeal with the Federal Supreme Court, with requests for suspensive effect granted by presidential orders of 29 May 2020. No submissions on the merits were requested. The Federal Supreme Court joined the three cases.

Central question: is the cantonal remittal decision an admissible interlocutory decision under art. 93 FSCA, in particular with regard to the condition of art. 93 para. 1 let. b FSCA (immediate final decision avoiding lengthy and costly evidentiary proceedings)?

Considerations

The three appeals are directed against the same decision, rest on the same facts and oppose the same parties; they are joined in the interest of procedural economy (art. 24 FCPA, applicable by reference through art. 71 FSCA). In principle they are admissible under art. 100 para. 1, art. 42 para. 1, art. 72 para. 1, art. 74 para. 1 let. b, art. 75 and art. 76 FSCA, the amount in dispute reaching the statutory threshold.

The contested decision sets aside a judgment dismissing the action for definitive registration and remits the matter to the lower authority. It does not terminate the proceedings and therefore constitutes an interlocutory decision within the meaning of art. 93 para. 1 FSCA. As it does not concern jurisdiction or recusal (art. 92 FSCA), it may only be challenged if the conditions of art. 93 para. 1 let. a or let. b FSCA are met. Under art. 93 para. 3 FSCA, it may otherwise be challenged together with the final decision, to the extent that it affects its outcome.

The condition of art. 93 para. 1 let. b FSCA cumulatively requires that the Federal Supreme Court be able to render a final judgment itself by reforming the contested decision, and that the admission of the appeal avoid lengthy and costly evidentiary proceedings, which must depart significantly from ordinary litigation (hearing of several parties or witnesses, production of documents, no). It is incumbent on the appellant to demonstrate these conditions, by indicating the disputed factual questions and the evidence to be taken. This condition must be applied restrictively.

In the present case, the first condition is met: the admission of the appeals would result in the dismissal of the request for definitive registration and would…