SENTENCE. --- Hermosillo, Sonora, 2nd of April, Two thousand two.

Taking into consideration the stage of appeal of

Civil Case number 1/2992, and,

W H E R E A S:

I. The sentence of the Twenty-fifth of October

of Two thousand one, dictated by the Third District Judge of

the State of Sonora, located in that city, in Plenary

Mercantile Lawsuit number 1/96, brought by DAVID LESLIE

HERMISTON CHESTER against MINERA SUMMIT DE MÉXICO, S.A. DE

C.V. and FARALLÓN MINERA MEXICANA, S.A. DE C.V. and

FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS POMPA,

PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY

DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC REGISTRY

OF MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE

OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, concluded,

among other things, with the following analytical points:

"FIRST.- This Court has been competent to hear and resolve

the present controversy and the Plenary Mercantile Lawsuit

selected by the plaintiff has been the correct recourse.---

SECOND.- The plaintiff, DAVID LESLIE HERMISTON, did not

accredit the factual allegations of the main, subsidiary or

supervening actions exercised.--- THIRD.- MINERA SUMMIT

DE MÉXICO, S.A. DE C.V., FARALLÓN MINERA MEXICANA, S.A. DE

C.V., FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS

POMPA, PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA,

KILBY DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC

REGISTRY OF MINING and the PUBLIC REGISTRY OF PROPERTY AND

COMMERCE OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA,

ARE HEREBY ABSOLVED, from payment of the benefits claimed

by DAVID LESLIE HERMISTON, for the reasons stated in the

legal bases set forth under numbers NINTH, TENTH, ELEVENTH

and TWELFTH of this sentence.--- FOURTH.- DAVID LESLIE

HERMISTON is hereby sentenced to pay, in favor of the

respondents, MINERA SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN

MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER MORENO

MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,

JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, FIDEL J.

GONZÁLEZ LEWIS and THE PUBLIC REGISTRY OF MINING, who

answered the lawsuit against them, the expenses and costs

incurred in the procedures of the present lawsuit, after

having been established by means of the corresponding

incidental procedure, in the terms of the TWELFTH

Considering clause.---"

II.- The legal Attorney in Fact of the plaintiff, DAVID

LESLIE HERMISTON CHESTER, filed an appeal against the

preceding decision, which was admitted for both effects.

Once the case was opened, the recourse was substantiated

through the appropriate legal steps and it is now proceeded

to dictate sentence.

C O N S I D E R I N G:

1st. This First Unitary Court of the Fifth Circuit

is competent to hear the present matter, pursuant to Article

29, Section III of the Organic Law of the Judicial Power of

the Federation, in relation to precept 1339, section I of

the Commercial Code, inasmuch as this is a recourse of

appeal brought against the sentence dictated in the first

instance by the District Judge of the territorial

jurisdiction of this same Court.

2nd. That to pronounce on the decision being

appealed, the resolving judge based his judgment on the

following reasoning: "...SECOND.- The plenary mercantile

proceeding selected by the plaintiff party is correct, in

accordance with the provision contained in Article 1377 of

the Commercial Code, since the actions exercised do not

require a special proceeding.--- THIRD.- The contending

parties are justified both in the procedure as well as in

the cause. In the proceeding, the plaintiff party is an

individual person, of adult age, in full use of his civil

rights; as are the respondents, FRANCISCO JAVIER MORENO

MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,

JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, and FIDEL

J. GONZÁLEZ LEWIS.--- As refers to THE PUBLIC REGISTRY OF

MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF

THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, it has been

evidenced that such entities are juristic persons, the first

two of a private nature, duly constituted, and the latter

two of a public nature, who appeared at the proceeding

through the conduct of a person with the authority to do so

and, therefore, it is concluded that the contending parties

may be constituted as parties in the proceeding, pursuant to

Article 55, Sections I and II of the Code of Civil

Procedures for the State of Sonora, of suppletory

application to the Commercial Code.--- The contending

parties have legal standing in the lawsuit because the

lawsuit was brought by DAVID LESLIE HERMISTON, natural

person to whom the Law grants authority to do so, against

individual and corporate persons against whom the action may

be exercised, this not to imply that the basis of the matter

shall be prejudged.--- FOURTH.- By reason of technical

procedures, the exception of prescription indicated by

FRANCISCO JAVIER MORENO MOLINA must be analyzed, who

asserted that the right of the plaintiff to oppose the

resolutions taken in the meetings of MINERA SUMMIT,

is precluded, inasmuch as Article 201 of the General

Commercial Companies Law, establishes that the term for

interested parties to oppose a resolution is fifteen days.--

In this respect, this judge considers that the exception

of prescription is not applicable inasmuch as Article

201 of the General Commercial Companies Law upon which the

respondent bases his case, establishes the term for the

stockholders to legally oppose the resolutions of the

meetings, but not to exercise actions such as that being

brought by the plaintiff which is based on the consideration

that the principal actions in the lawsuit are because of the

nullity of several mandates.--- FIFTH.- Upon summoning

each of the respondents, the legal procedural relationship

was duly integrated, complying with the formalities

referred to in Article 171 of the Code of Civil Procedures

for the State of Sonora, of suppletory application to the

Commercial Code.--- SIXTH.- The parties enjoyed the

equality and the probatory term conferred in Articles 1194,

1195, 1196, 1197, 1198 and 1199 of the Commercial Code, and

were able to offer the means of conviction they considered

ideal and pertinent. SEVENTH.- Satisfied that the

necessary procedural requirements have been met for the

present lawsuit to have legal existence and formal validity,

it is proceeded to enter into the question of law of the

present lawsuit, in accordance with the provisions of

Article 48 of the Code of Civil Procedures for the State of

Sonora, of suppletory application to the Commercial Code.---

The case for the present lawsuit was established in the

complaint, in the clarification and broadening of the answer

thereto, as well as in the incidental lawsuit of supervening

action, the contents of which were established in the

chapter on the whereas clauses of this sentence, the

aforesaid being cited as if reproduced to the letter, to

avoid unnecessary repetitions and for the purpose of economy

in the proceedings, the foregoing based on Articles 1396 and

1405 of the Commercial Code.--- NINTH.- As one of its

principal actions, the plaintiff party exercised the action

of nullity or nonexistence of the mandate executed on the

Sixteenth day of November of Nineteen hundred and ninety-

two, in favor of FRANCISCO JAVIER MORENO MOLINA, and in

consequence, in a supplementary manner, the statement that

the plaintiff was not legally present at the Stockholders'

General Regular(1) Meeting of MINERA SUMMIT DE MÉXICO, S.A.

DE C.V., held on the Twenty-third of December, Nineteen

hundred and ninety-four; the nullity of the agreements or

resolutions taken in the above mentioned General Regular(1)

Meeting; the nullity of the appointment of JESÚS PEDRO

VILLAGRÁN GARCÍA as Sole Administrator of MINERA SUMMIT DE

MÉXICO, S.A. DE C.V. agreed at that Meeting; the

nonexistence of the option agreement entered into between

MINERA SUMMIT DE MÉXICO, S.A. DE C.V. and FARALLÓN MINERA

MEXICANA, S.A. DE C.V.; and the cancellation of the

registrations filed at the Public Registry of Mining and the

Public Registry of Property and Commerce of this Judicial

District of Hermosillo, under number 152, Page 124, Volume

3, of the Book of Mining Acts, Contracts and Agreements, and

11,652, Book One, Volume 49, Commercial Section,

respectively (actions identified as A, B, C, D, E, F, G and

H), supplementary with respect to the actions exercised in

clauses c) and d) in which the resolution adopted in the

Stockholders' General Regular(1) Meeting of MINERA SUMMIT DE

......................................................

........... (1) In Mexico, Stockholders' Regular(1) General Meeting ("Asamblea General Ordinaria de Accionistas", i.e. Stockholders' 'Ordinary' General Meeting).

MÉXICO, S.A. DE C.V., held on the Twenty-third of December,

Nineteen hundred and ninety-four be declared legally null

and void, and as a consequence of the previous statement,

the cancellation of the subject agreement at the Public

Registry of Property and Commerce under number 11,652, Book

1, Volume 49, Commercial Section. In addition, a certified

copy is found in the records of public deed number 4992,

volume one hundred and eighty-four, dated the Thirteenth of

October of Nineteen hundred and ninety-two, executed and

attested to by Notary Public number 32, exercising in this

city of Hermosillo, which certifies the organization of the

corporation with the name of "MINERA SUMMIT DE MÉXICO, S.A.

DE C.V."; certified copy of public deed number 6,010,

Volume 242, dated the Fifteenth of June, Nineteen hundred

and ninety-five, executed and attested to before Notary

Public number 32, exercising in this notarial district,

relative to the Meeting of Stockholders held on the Twenty-

third of December, Nineteen hundred and ninety-four in which

the appointment is certified of JESÚS PEDRO VILLAGRÁN GARCÍA

as Sole Administrator of MINERA SUMMIT DE MÉXICO, S.A. DE

C.V., as well as the certified copy of deed number seventy

thousand eight hundred and fifty-eight dated the Twenty-

sixth of January, Nineteen hundred and ninety-six, executed

and attested to before Notary Public number 74 of the

Federal District, certifying a document dated the Eleventh

of January, Nineteen hundred and ninety-six, containing an

option agreement with respect to the exclusive right

(illegible) of "FARALLÓN MINERA MEXICANA, SOCIEDAD ANÓNIMA

DE CAPITAL VARIABLE" (A VARIABLE CAPITAL STOCK COMPANY) to

acquire one hundred percent of the mining concession for the

exploitation of the CAMPO MORADO mine and the "LA ALINA"

mining concession, documents which must be taken into

account inasmuch as they were exhibited with the complaint,

the aforesaid in accordance with Section II, Article 266 of

the Code of Civil Procedures for the State of Sonora, of

suppletory application to the Commercial Code, and which

have the probative value conferred by Article 1192 of the

Commercial Code, from which the existence of the facts upon

which the plaintiff founds his claim are evident. However,

this judge concludes that such claims are unfounded.- The

foregoing, based on the fact that although it is true that

Article 192 of the General Commercial Companies Law

establishes that, "Neither the administrators nor the

statutory auditors may be legal representatives of the

corporation", it is also true that entering into a contract

contravening said provision does not have the legal

consequence of declaring the invalidity of the meeting of

the minds therein contained, in view of the fact that there

is no express provision in this regard in the same General

Commercial Companies Law or in the Commercial Code,

indispensable requisite to judicially declare the nullity of

an act.--- Indeed, if it is true that Article 2225 of the

Civil Code for the Federal District, of suppletory

application in commercial matters, as provided in Article

2nd of the Commercial Code, provides that illegality in the

object, in the purpose, or in the condition of the act,

produces its nullity, either absolute, or relative, it is

also true that the same device indicates "as provided by

Law", from which it is concluded that since it is not

invalid as a matter of law, set forth in the Law as such, to

be declared by the judge, it must be expressly contemplated

in a legal precept which provides that sanction and its

causes in a clear form.--- Accordingly, if there is no

article whatsoever establishing the nullity of a power of

attorney granted to the administrator or statutory auditor

of a corporation, it follows that the action exercised to

declare the nullity of the power granted on the Sixteenth of

November of Nineteen hundred and ninety-two by the plaintiff

party to FRANCISCO JAVIER MORENO MOLINA is unjustified; and

therefore, the nullity or nonexistence of the acts referred

to by the plaintiff in the accessory benefits derived from

the nullity of the subject mandate is also unwarranted.-

TENTH.- In the benefits identified in clauses H, I, J, K, L

and M, the plaintiff requests that it be declared that he

was not present in the Stockholders' Meeting of MINERA

SUMMIT DE MÉXICO, S.A., held immediately after its

incorporation and, as a consequence thereof, the nullity of

the resolution taken by the Stockholders' General Regular(1)

Meeting of MINERA SUMMIT DE MÉXICO, S.A. DE C.V. in which

JESÚS PEDRO VILLAGRAN OCHOA was appointed general attorney

in fact for lawsuits and collections, acts of administration

and ownership, in the broadest possible terms; the

declaration of nonexistence due to a lack of consent by

MINERA SUMMIT DE MÉXICO, S.A. DE C.V. of the contract

entered into between MINERA SUMMIT DE MÉXICO, S.A. DE C.V.

and FARALLÓN MINERA MEXICANA, S.A. DE C.V., set forth in the

document dated the Fifteenth of October, Nineteen hundred

and Ninety-five; the nonexistence, due to the lack of

consent of MINERA SUMMIT DE MÉXICO, S.A. DE C.V., of the

powers of attorney granted by MINERA SUMMIT, through the

conduct of JESÚS PEDRO VILLAGRÁN OCHOA in the names of

FERNANDO LEMAS POMPA and KILBY DANIEL BRUCE, as well as the

cancellation of the registrations filed with the Public

Registry of Property and Commerce under number 11,750, Book

One, Volume 5, Commercial Section order (sic.), and in

number 12,126, Book One, Volume 71, Commercial Section, and

in a supplementary form, the actions identified in

subclauses i) and ii), which in content are identical to

those exercised in clauses K) and L).--- A copy is found in

the records of the Letter of Proxy granted on the Twenty-

fourth of September, Nineteen hundred and Ninety-two, by

DAVID LESLIE HERMISTON to FRANCISCO JAVIER MORENO MOLINA,

ratified in signature and contents before Notary Public

number 58, in exercise in the city of Hermosillo, which in

ruling of the Thirteenth of June, Nineteen hundred and

Ninety-seven, was admitted as an exact copy of said

document; certified copy of Public Deed 4992, Volume 184,

dated the Thirteenth of October, Nineteen hundred and

Ninety-two, executed and attested to before Notary Public

number 32, in exercise in this city, in which the

appointment of JESÚS PEDRO VILLAGRAN OCHOA is certified as

general attorney in fact for lawsuits and collections, acts

of administration and ownership, in the broadest possible

terms; document subscribed on the Fifteenth of October,

Nineteen hundred and Ninety-five; a copy of which was

exhibited and accepted as authentic in the ruling dated the

Thirteenth of June, Nineteen hundred and Ninety-seven; in

addition, there are certified copies of public deeds 6,4000

(sic.) and 6,326, volumes 262 and 268, respectively,

confirming that JESÚS PEDRO VILLAGRÁN OCHOA granted to KILBY

DANIEL BRUCE and RAÚL FERNANDO LEMAS POMPA a general power

of attorney for lawsuits and collections and a general power

of attorney for lawsuits and collections and acts of

administration, respectively, documents which pursuant to

the provisions of Article 266 of the Code of Civil

Procedures for the State of Sonora, of suppletory

application to the Commercial Code, 1192 of the Commercial

Code, have full probative value to accredit the facts

indicated by the plaintiff in his lawsuit. Nevertheless,

the principal claim contained in Clause H) is unfounded. To

that effect, the plaintiff indicates as facts of the subject

action that on the Twenty-fourth of September, Nineteen

hundred and Ninety-two, he granted power of attorney to

FRANCISCO JAVIER MORENO MOLINA solely to represent him as a

stockholder at the incorporation of the corporation, MINERA

SUMMIT DE MÉXICO, S.A. DE C.V., but not to represent him at

the Stockholders' Meeting of SUMMIT.--- The Letter of Proxy

of the Twenty-fourth of September, Nineteen hundred and

Ninety-two in which the power of attorney was granted in the

name of FRANCISCO JAVIER MORENO MOLINA, in its relevant

part, states: "BROAD, FULL AND SUFFICIENT POWERS TO APPEAR

IN MY (OUR) NAME AND REPRESENTATION AT THE ACT OF

INCORPORATION OF THE CORPORATION DENOMINATED MINERA SUMMIT

DE MÉXICO, S.A. DE C.V. TO ASSERT MY CAPACITY AS

STOCKHOLDER".--- Consequently, taking into consideration

the contents of the subject power of attorney, as well as

the contents of Article 6th of the General Commercial

Companies Law, which establishes a series of requisites

which must be included in the Articles of Incorporation of

the corporation, among others, the appointment of the

administrators and the designation of those persons who

shall carry the corporate signature, it is considered that

FRANCISCO JAVIER MORENO MOLINA did not exceed his functions

as a mandatary of DAVID LESLIE HERMISTON, since the

Regular Meeting in which JESÚS PEDRO VILLAGRÁN OCHOA was

appointed general attorney in fact for lawsuits and

collections, acts of administration and ownership, in the

broadest possible terms of MINERA SUMMIT DE MÉXICO, S.A. DE

C.V., formed part precisely of the incorporation of that

corporation, particularly if it is considered that the power

of attorney granted by the plaintiff in the name of

FRANCISCO JAVIER MORENO MOLINA was not limited in that

aspect.--- ELEVENTH.- With regard to Clauses O, P, Q, R, S,

T and U, and subclauses i) ii) and iii), the plaintiff

requests that it be declared that the power granted to FIDEL

J. GONZÁLEZ LEWIS, on the Eighth of December, Nineteen

hundred and ninety-four, did not include the express

authority to the mandatary of making donations in the name

and for the account of the plaintiff; and as a consequence

thereof, that a declaration of nonexistence be made, due to

a lack of consent, of the gratuitous assignment or stock

donation of the plaintiff in favor of RAÚL FERNANDO LEMAS

POMPA, set forth in the document dated the Twentieth of

June, Nineteen hundred and ninety-five, and any property

endorsement made in the name of the plaintiff by FIDEL J.

GONZÁLEZ LEWIS, in favor of RAÚL FERNANDO LEMAS POMPA with

respect to the shares, indirect object of the gratuitous

assignment or donation; that RAÚL FERNANDO LEMAS POMPA be

sentenced to deliver the stock certificates representing the

shares which were the object of the gratuitous assignment or

donation to the plaintiff; that MINERA SUMMIT DE MÉXICO,

S.A. DE C.V., be sentenced to cancelling and leaving without

effect any registration which might have been made of the

shares, as well as of the subject gratuitous assignment or

donation, this judge finding himself unable to proceed with

the study of the aforementioned shares.-- The foregoing is

due to the fact that although it is true that a copy of the

power of attorney granted by DAVID LESLIE HERMISTON on the

Eighth of December, Nineteen hundred and ninety-four to

FIDEL J. GONZÁLEZ LEWIS is in the court files, the shares

contained in clauses P, Q, R, S, T and U and subclauses i),

ii) and iii) depend on the nullity of the power of attorney

in question, document which in ruling dated the Thirtieth of

June, Nineteen hundred and ninety-eight was admitted as an

exact copy of the subject document, accompanied by a

translation into Spanish (Exhibit 10), that is not

translated in its entirety, and in some spaces the phrase

"illegible word" appears, document which is a necessary

requirement for this judge to be able to analyze what

powers were granted to FIDEL J. GONZÁLEZ LEWIS and thus

determine whether he was given the authority to make

donations in the name and for the account of the plaintiff;

making it necessary therefore, for the plaintiff party to

offer the expert proof in the translation of the language

because in this case special knowledge is required to

clarify the sense of the power of attorney granted, pursuant

to Article 1252 of the Commercial Code in force.- Under

these conditions and taking into consideration that Article

1194 of the Commercial Code establishes that, "he who

affirms is obliged to prove.- Consequently, the plaintiff

must prove his action and the accused his exceptions", it is

unquestionable that the plaintiff had the obligation of

proving that among the powers granted to FIDEL J. GONZÁLEZ

LEWIS, making donations in his name and for his account was

not included, which did not occur in this case. This Judge

is not unaware that in communication received by this Court

on the Twenty-second of September, Nineteen hundred and

Ninety-nine, said party offered several means of proof.

Nevertheless, such proof was not admitted because his offer

was made extemporaneously, this determination being firm, by

reason of the fact that the Court of Appeals rejected the

appeal brought by the plaintiff against said determination.-

-- On the other hand, it should be stated that it is

unnecessary to begin the study of the proofs submitted by

the respondent parties, FARALLÓN MINERA MEXICANA, S.A. DE

C.V., MINERA SUMMIT DE MÉXICO, S.A. DE C.V. and JESÚS PEDRO

VILLAGRÁN OCHOA, based on the fact that the plaintiff did

not prove their actions, for which reason the actions

exercised by the plaintiff referred to in this

"CONSIDERING", are declared unfounded and inadmissible, and

the respondents are absolved from payment of the benefits

claimed in the lawsuit. TWELFTH.- Concerning the

supervening action brought by the plaintiff in communication

dated the Third of April, Nineteen hundred and ninety-eight,

considering that the Second Unitary Court of the Fifth

Circuit, in Sentence of the Seventeenth of February,

Nineteen hundred and ninety-nine, dictated in Civil Case

677/98, confirmed the admission of said action, the study of

its legal basis was omitted, and it is therefore proceeded

to analyze the elements of proof offered to accredit the

facts supporting the case.--- In his incidental complaint,

the incidental plaintiff indicated that by means of the

document entitled, "CONTRACT OF ASSIGNMENT OF MINING

RIGHTS", dated the Tenth of January, Nineteen hundred and

ninety-seven, VILLAGRÁN GARCÍA (in presumed representation

of SUMMIT) and JUAN MANUEL GONZÁLEZ OLGUÍN, supposedly

representing FARALLÓN, made the following statements: That

the representative of Summit has the necessary powers to

bind (its principal) in the terms of the present contract,

such being confirmed in public deed number 6,329 dated the

Tenth of January, 1996; that the total price of the

assignment was the result of adding the amount of the

payments that Farallón has made to Summit in cash and in

common stock; that the assignment contract refers to the

two mining concessions referred to in the "option

agreement"; that the "assignment contract" was not the

document by means of which Farallón supposedly acquired the

concessions from Summit, since that contract was only a form

of confirming that Farallón had complied with the

nonexistent obligations which, in exchange for the pretended

transfer of the concessions, had been agreed upon for the

account of Farallón in the so-called "option agreement",

presumably entered into between Summit and Farallón. Also

commented was the fact that it was established in the

"option agreement", that with the object of exercising the

option, and consequently being able to receive and acquire

100% of the indivisible rights, Farallón should pay to

Minera Summit a total amount of One million two hundred

thirty-five thousand three hundred and eighty-eight pesos

($1,235,388) and issue, in the name of Minera Summit, Seven

hundred and fifty thousand (750,000) shares of fully paid-in

stock, with no encumbrances of Farallón capital. Upon

having paid the amount indicated and giving instructions

with respect to the issuance of the Seven hundred and fifty

thousand (750,000) shares in the name of Minera Summit, it

would be considered that Farallón Mexicana had acquired one

hundred percent (100%) of the indivisible rights of the

property, free and under no encumbrances whatsoever.--- It

was also stated that the previously indicated benefits

agreed upon, are the same ones which were considered to have

been paid to SUMMIT in the terms of Clause Third of the

"assignment contract", the nullity of which is pretended by

means of the supervening action. For this reason, the

"assignment contract" is not considered a legal act

independent of the subject "option agreement", but rather a

form of filing the change in ownership of the mining

concessions, from Summit to Farallón, at the Public Registry

of Property, considering that as a logical and legal

consequence, upon declaring the nonexistence of the "option

agreement" as requested in the initial communication of the

lawsuit, the legal nonexistence of the "assignment contract"

should also be declared. Along this same line of thoughts,

if in "CONSIDERING" Ninth of this sentence, the nullity

action of the "option agreement" was declared unfounded, the

same consideration must be made with respect to the

"assignment contract", taking into account that the

complainant derives the nonexistence of the latter contract

from the nonexistence of the "option agreement".-Finally,

pursuant to the provision of Article 1327 of the Commercial

Code, which establishes, "the sentence shall exclusively

cover the actions deduced and the exceptions opposed,

respectively, in the lawsuit and the answer thereto", from

which it is inferred that the case in the plenary mercantile

lawsuit was established based on the facts on which the

plaintiff bases its action, expressed in its initial

complaint, and those on which the respondent bases its

exceptions; consequently, if the plaintiff bringing the

incidental action does not indicate the cause of the

pretended nullity in its incidental complaint, it is

unquestionable in this respect that it did not form part of

the case, so that aside from the fact that proof was offered

and contributed tending to demonstrate such facts, this

Judge is not obligated to study the matter nor the proof

submitted for that purpose. For this reason, the analysis

of the different means of conviction offered by the

incidental plaintiff is omitted, of which the "CONFESSIONAL"

depositions were admitted, on the part of JESÚS PEDRO

VILLAGRAN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, RAÚL LEMAS

POMPA, FRANCISCO JAVIER MORENO and FIDEL GONZÁLEZ LEWIS, and

the DOCUMENTARY EVIDENCE consisting of the ASSIGNMENT

CONTRACT and Public Deed 6,329, Volume 261, executed before

Attorney Rubén Díaz Vega; in view of the fact that to do so

would be contrary to the principle of congruity which must

prevail in all judicial resolutions.- THIRTEENTH.- Aware

of the sense of the sentence and pursuant to Section I of

Article 1084 of the Commercial Code, the plaintiff is

sentenced to the payment in favor of the respondents, MINERA

SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN MINERA MEXICANA,

S.A. DE C.V., FRANCISCO JAVIER MORENO MOLINA, PEDRO

VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL

BRUCE, and THE PUBLIC REGISTRY OF MINING, who answered the

lawsuit against them, the EXPENSES and COSTS incurred in the

procedures of the present lawsuit, after having been

established by means of the corresponding incidental

procedure.---

3rd. Attorney Antonio Collado Mocelo, Legal

Attorney in Fact of DAVID LESLIE HERMISTON, set forth the

following injuries: "The final sentence being appealed has

caused the following injuries to his principal: FIRST

ERROR.- The A quo Judge caused an error detrimental to my

principal, in indicating on page 17 of the sentence being

appealed.--- "CONSIDERING" THIRD.- The contending parties

are legitimized both in the procedure and the cause. In the

process the plaintiff party, being an individual person, of

adult age, in full use of his civil rights, in the same

manner as the respondents, FRANCISCO JAVIER MORENO MOLINA,

RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA, JESÚS

PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, and FIDEL J.

GONZÁLEZ LEWIS".--- As refers to Minera Summit de México,

S.A. de C.V., Farallón Minera Mexicana, S.A. de C.V., and

the Public Registry of Property and Commerce of the Judicial

District of Hermosillo, Sonora, it has been evidenced that

such entities are juristic persons, the first two of a

private nature, duly constituted, and the latter two of a

public nature, who appeared at the proceeding through the

conduct of a person with the authority to do so, and

therefore, it is concluded that the contending parties may

be constituted as parties in the proceeding, pursuant to

Article 55, Sections I and II of the Code of Civil

Procedures for the State of Sonora, of suppletory

application to the Commercial Code".--- The contending

parties are legitimated in the lawsuits, the lawsuit having

been brought by DAVID LESLIE HERMISTON, individual person

to whom the Law grants authority to do so, against

individual and corporate persons, against whom the action

may be exercised, this not implying that the basis of the

matter be prejudged.--- This indeed causes injury, in

virtue of the fact that it fails to correctly apply the

provisions of Article 192 of the General Commercial

Companies Law which, to the letter states: Article 192:

"The stockholders may be represented at the meetings by

agents, whether forming part of the corporation or not. The

representation shall be conferred in the manner prescribed

in the By-Laws and, in the absence of a stipulation, in

writing.--- Neither the administrators nor the statutory

auditors may be legal representatives of the corporation".--

- As can be seen in the preceding transcription of the

article invoked, it provides that the Third District Judge

should have officially proceeded to pursue the matter since

it was an act of public order and because it was a

prohibitive law, whereas in the court files, the judge, in

dictating that MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,

appeared at the proceedings through the conduct of a person

with the powers to do so, reasons in an erroneous manner;

accordingly,

in conclusion, this is inadmissible since it is contrary to

the provisions dictated in Article 192 of the General

Commercial Companies Law. For this reason, the personality

with which Mr. MORENO MOLINA is accredited is null and

void, since he cannot be accredited as the attorney in fact

of DAVID LESLIE HERMISTON, because the power of attorney

given to him authorized only one legal act which was solely

to represent Mr. DAVID LESLIE HERMISTON at the

incorporation of the corporation denominated, MINERA SUMMIT

DE MÉXICO, S.A. DE C.V., at the Meeting held on the 13th of

October of 1992. It is therefore necessary to mention that

all of the legal acts realized by Mr. MORENO MOLINA

subsequent to the aforementioned date are null and void

because he did not have the personality with which he

presented himself.--- Due to the fact that Mr. MORENO

MOLINA was appointed Secretary of the Board of Directors of

the corporation on the 13th of October, 1992, and inasmuch

as Article 192 provides that "administrators and statutory

auditors may not be legal representatives of the

corporation", and the corporation was formed as follows:

Mr. DAVID LESLIE HERMISTON was named as Chairman, Atty.

FRANCISCO JAVIER MORENO MOLINA, as Secretary, and Atty.

JESÚS PEDRO VILLAGRÁN, as Treasurer, the legal acts carried

out by Mr. MORENO MOLINA subsequent to that date are null

and void because they fragrantly violate specific articles

contained in our commercial legislation that from every

point of view are fraudulent, since these acts are intended

to cause a false appreciation of the reality. It is

because of this that the Board of Directors of the subject

company must be declared null and void, inasmuch as a

representative cannot be a director and if it is a director,

it cannot be a representative, since one precludes the

other. The powers granted were only to incorporate the

corporation and this is not a reason to violate Article 6th

of the General Commercial Companies Law. What should have

been done was to issue a call with the necessary quorum

present, in accordance with the By-Laws, and hold a

stockholders' Meeting to appoint a board of directors.---

Based on the foregoing, it is respectfully requested that

said Court of Appeals revoke the sentence which in an

evidently illegal form has been dictated, causing

irreparable damage to my principal by considering that said

legal acts which violate federal law, such as the Commercial

Code and the Civil Code for the Federal District, of

suppletory application to the matter under discussion, are

valid.--- SECOND ERROR.- The often cited sentence, dated

the Twenty-fifth of October of the present year, dictated by

the Third District Judge in Civil Matters of the State of

Sonora, causes an error in my principal's case with respect

to "CONSIDERING" Sixth of said sentence which, to the

letter, states: SIXTH: The parties enjoyed the equality and

the probatory term conferred in Articles 1194, 1195, 1196,

1197, 1198 and 1199 of the Commercial Code, and were able to

offer the means of convention considered ideal and

pertinent.--- "--- In the first place, the "A quo" judge,

in dictating said sentence, is violating Article 81 of the

Code of Civil Procedures for the Federal District, with

suppletory application to the Commercial Code, since it is

not being done in a coherent, clear and precise manner.---

In the same manner, and as Your Honor may observe, my

principal at no time enjoyed the equality and probative

opportunity as the judge would make us believe, since the

provision set forth in Article 1054 of the Commercial Code

is being violated, which indicates, as well as serving to

support, the following jurisprudence:--- Art. 1054: In the

event that no agreement exists between the parties on the

procedure before the courts in the terms of the preceding

articles, unless commercial laws establish an express

special or supplemental procedure, commercial lawsuits will

be governed by the provisions of this book and with respect

to their rights, the respective law of local procedures

shall apply".--- "Novena Época". Instance. Twentieth

Circuit Court of Associate Justices.- Source: Judicial

Weekly of the Federation and its Gazette. Tome: 11,

November, 1995.- Thesis: XX.54 C - Page 564.-

NOTIFICATIONS. IN THIS ASPECT THE CODE OF LOCAL CIVIL

PROCEDURES MUST BE APPLIED IN A SUPPLETORY MANNER TO THE

COMMERCIAl CODE. (LEGISLATION OF THE STATE OF CHIAPAS).-

.... (Transcription of thesis).--- Based on the above, we

can see that when the Commercial Code lacks a certain legal

provision, the Local Code is applicable, which in this case

is the Code of Civil Procedures for the State of Sonora, so

that to be able to offer the probative means and have them

taken into account, the criterion that should have been

applied by the "A quo" with respect to the usual term and

the period of time counted so that the parties may offer the

necessary evidence to be able to prove their statements,

must be that of the provisions stipulated in Article 180 of

said code, which in its pertinent part indicates, "when

there are various parties and the term is the usual one, it

will be counted from the day following the date on which all

parties have been notified...", which statement provides,

and it is necessary to indicate, that in not admitting the

proofs offered in time and form, the Third District Judge

left my principal in a total and absolute indefensible

state.--- In this same order of ideas, the plaintiff did

not have the obligation or the duty to offer such proofs by

counting the term from the date of his notification, but

rather, to the contrary, the term to present them began as

of the date of notification of the last co-respondent, as

realized today by the appellant, since it was within the

time given to the parties to render the proof accrediting

their respective rights.--- Since the term was counted in

an inexact manner, as has been shown, my principal cannot

prove his statement in the same manner and in accordance

with the articles indicated by the Third District Judge, it

being evident that the plaintiff must prove his action,

offering the pertinent evidence to do so, clearly expressing

the facts which it is intended be demonstrated, which was

realized in the term given in accordance with local

legislation. For this reason, the decision dictated by the

A quo in the often cited sentence dated the 25th of October,

2001, must be revoked. To support the foregoing, the

comments made by Jurist Eduardo Pallares, in his book

entitled, "Dictionary of Civil Procedural Law",

emphasize "... that the usual term is that which concerns

the two parties. When it is the usual term it will begin to

elapse only from the day following the date on which all of

the parties (illegible)..."

Based on the preceding arguments wielded, it is evident that

the A quo violated our legislation, applying the law

erroneously, as has been demonstrated in the respective

rulings. In the same manner, as set forth in the records,

Your Honor will observe that the responsible authority did

not apply the law correctly. Therefore, the proofs offered

by my principal must be admitted in the lawsuit under

discussion, so that a level of procedural equality is

achieved between the parties, as well as to be able to

dictate a just, clear and coherent sentence.-- THIRD

ERROR.- The A quo judge caused an error in my principal's

lawsuit in dictating the "CONSIDERING" Seventh of the

sentence handed down on the 25th of October of the present

year, which was published on the 26th of the same month and

year, which to the letter states: "... SEVENTH.- Satisfied

that the necessary procedural requirements have been met for

the present lawsuit to have legal existence and formal

validity, it is proceeded to enter into the question of law

of the present lawsuit, in accordance with the provisions of

Article 48 of the Code of Civil Procedures for the State of

Sonora, of suppletory application to the Commercial Code.---

From the above, it is apparent that the A quo judge

violated and transgressed the stipulations of Article 48 of

the Code of Civil Procedures for the State of Sonora, which

provides: "Art. 48: The respondent may announce to the

judge and assert as exceptions, the necessary procedural

requisites for the lawsuit to have legal existence and

formal validity, and in addition, all of these can be

enforced or be officially amended by the Judge, without a

request from the party, when it has knowledge thereof.---

In the first place, the A quo judge at no time studied or

put together the procedural requisites of the respondent

party which are necessary for the lawsuit to have legal

existence and formal validity, as provided in the article

preceding; further, as confirmed in the court files and as

Your Honor shall see, the personality that Mr. J. PEDRO

VILLAGRÁN OCHOA manifests, is not legally supported, since

the power of attorney granted at the time it was conferred

was outside of all legal order and is, therefore, null and

void, which has been demonstrated within the present

communication, but is not transcribed for the purpose of

procedural economy.--- In the same manner, the

representation and personality that PEDRO VILLAGRÁN states

he has with the corporation denominated, MINERA SUMMIT

(sic.), S.A. DE C.V. is also null and void, because said

personality is accredited in the same minutes of the

Stockholders' General Meeting in which Mr. MORENO MOLINA,

who did not have the powers to realize the act, gave his

vote to appoint him as Administrator of said company. In

the second place, as is well known, the personality of the

parties must be officially studied and authenticated, the

following jurisprudence serving as support of the above:

"Novena Época". Instance. Second Court of Associate

Justices of the Fifth Circuit.- Source: Judicial Weekly of

the Federation and its Gazette. Tome: III, April, 1996.-

Thesis: V.2o.24 C- Page 435.- PERSONALITY. UNOFFICIAL

STUDY OF, IN APPEALS... - (Transcription of thesis).--- It

is evident that the A quo judge failed to study the

personality of the co-respondents, omitting and violating

the local legislation, causing serious damage to my

principal.--- Following this same order of ideas, with

respect to the fact that the judge, in "CONSIDERING"

Seventh, indicates that "it proceeds to enter into the

question of law of the present lawsuit...", this is

erroneous, since in not evaluating the proofs presented by

the parties, it is legally impossible to study the question

of law of the case under discussion, inasmuch as he did not

take into account the means of conviction of the parties.

Because of the aforesaid, I request that you, Citizen

Magistrates, kindly revoke the sentence being appealed

pursuant to the previously expressed statements. FOURTH

ERROR.--- The A quo judge who committed the error in

the lawsuit of my principal as set forth from Pages 19 to 22

of the sentence being opposed): ... (Refer to the reasoning

of the judge in "CONSIDERING" Ninth).--- In effect, the

Judge caused the error because he failed to correctly apply

the provisions of Article 192 of the General Commercial

Companies Law, in relation to Articles 6, 8, 10, 11, 12,

19, 1801 and 2224 of the Civil Code for the Federal

District, which to the letter, states: Article 192 (GCCL).-

"The stockholders may be represented at the meetings by

agents, whether forming part of the corporation or not. The

representation shall be conferred in the manner prescribed

in the By-Laws and, in the absence of a stipulation, in

writing.--- "Neither the administrators nor the statutory

auditors may be legal representatives of the corporation".--

- It is evident that upon being appointed Secretary of the

Board of Directors in the Meeting held in October, 1992, Mr.

FRANCISCO JAVIER MORENO MOLINA was legally impeded from

representing Mr. DAVID LESLIE HERMISTON CHESTER at the

Meeting held on the 23rd of December, 1994, in virtue of the

provision of the previously invoked article, containing the

rule prohibiting administrators and statutory auditors from

being attorneys in fact of stockholders at stockholders'

meetings. Therefore, the A quo judge has incorrectly

interpreted this article, causing an error against my

principal, as established in the Civil Code for the Federal

District, of suppletory application to commercial matters.--

- Article 6, Civil Code of the Federal District.- The will

of individual parties shall not exempt them from observing,

nor shall they alter or modify, the law. Only those private

rights not directly affecting the public interest may be

waived, provided such waiver does not damage the rights of

third parties.--- From what is evident, supposing without

conceding that my principal had signed the power of attorney

in question, with knowledge of the provision of Article 192

of the General Commercial Companies Law, this legal

phenomenon is null and void because the will of private

parties cannot be placed above what is set forth by the

legislator in the rules of public order. To the contrary,

and in accordance with the article that in the same manner

has been violated by the A quo judge, transcribed

hereinbelow, the contents of the aforesaid Article 192 is a

prohibitive rule of public order, which society requires be

rigorously observed.--- Article 8, Civil Code of the

Federal District.- The acts performed against the nature of

prohibitive laws or those of public interest shall be

invalid, except in the cases in which the law orders the

contrary.- This Article 8 was also ignored by the natural

judge who has general jurisdiction over the issue. If he

had complied therewith, because the law must be observed

without argument, he would have evidently concluded, as the

judge did, in the legal bases for the actions studied in

"CONSIDERING" Ninth, in which an error is committed against

my principal, that, "...entering into a contract in

contravention of said provision does not have the legal

consequence of declaring the nullity ....". Because from

the article previously studied, it is apparent that the law

does provide a logical and legal consequence for those acts

which are in contravention of the stipulations of Article

192 of the General Commercial Companies Law, there being no

argument whatsoever to the contrary, therefore indicating

that the A quo judge did not apply the provisions of Article

10 of the Civil Code for the Federal District.-. The

disuse, custom or practice to the contrary cannot be argued

against the observance of the law .--- It is thus clear

that Article 192 of the General Commercial Companies Law,

establishes an express prohibition, which evidently results

in the absolute nullity of the act. It is pertinent to

emphasize that in no part whatsoever of the commercial

legislation cited is there an established cause for

exception which justifies its lack of application, so that

the Third District Judge of Sonora, omits the application of

the provisions established in Article 11 of the Civil Code

of the Federal District.- The laws which establish

exceptions to the general rules are not applicable to any

case whatsoever which is not expressly specified in the same

laws.--- This is another error against my principal because

if a hypothesis of exception does not exist, it is evident

that Article 192 of the General Commercial Companies Law

will be brought up to date by any act performed by a member

of the Board of Directors who is the attorney in fact of a

stockholder in a stockholders' meeting; it is clear, in

accordance with the legislation invoked and not applied by

the A quo judge, that it will end in the nullity of the act;

since in this concrete case, these provisions must be

applied because the acts we are requesting be annulled, were

realized within the national territory, and finally, the

Third District Judge failed to consider the spirit of

Article 12 of the Civil Code for the Federal District.-

Mexican law governs all of the persons located within the

Mexican Republic, as well as the acts and events occurring

in its territory or under its jurisdiction, and those

persons subject to such laws, except when such persons take

steps for the application of a foreign right, and also with

the exception of the provisions of the treaties and

conventions in which Mexico participates.--- From which it

is obvious that although Mexican law governs the matter

under discussion, the A quo judge failed to apply Mexican

law, and because the natural judge should have resolved the

matter by strictly adhering to and applying same, and in not

doing so, also failed to apply the law, again causing an

error against my principal. Article 19, Civil Code for the

Federal District, indicates: Article 19, Civil Code for

the Federal District.- The judicial controversies of civil

order must be resolved pursuant to the letter of the law or

its legal interpretation, and in the absence of the law,

these shall be resolved in accordance with the general

principles of law.--- Finally, the A quo judge does not

take into consideration that the contents of Article 192 of

the General Commercial Companies Law, is closely linked to

Article 1801 of the Civil Code for the Federal District

which, in a much more conclusive manner than the first,

indicates that: Article 1801, Civil Code for the Federal

District.- No person shall enter into a contract in the

name of another person without authorization thereby or by

the law.--- That is, the subject Article 192, in

prohibiting that administrators may not be attorneys in fact

of the stockholders at stockholders' meetings, it is evident

that the law does not authorize contracting in their name,

which is evidence of the lack of legality of its acts, and

its consequent nullity, provisions which the A quo judge

fails to apply, continuing to cause an error against the

appellant.--- In conclusion, therefore, since the

administrator is not able to represent the stockholder at

the meeting of the corporation, it is clear that no

representation exists and for this reason there being an

absence of will that, according to Article 2224 of the Civil

Code for the Federal District, as well as Articles 1792 to

1811 of the same ordinance, provides a nuance of

nonexistence or nullity of the act carried out, circumstance

which is neglected by the natural judge, therefore causing

an error against my principal.--- Article 2224, Civil Code

for the Federal District.- A nonexistent juridical act

which due to a lack of consent or of objective which could

be the subject thereof, shall not produce any legal effect

whatsoever. It is not susceptible to confirmation, nor by

prescription; its nonexistence can be invoked by all

interested parties.--- Once it has been clearly understood

that Mr. DAVID LESLIE HERMISTON was not legally represented

at the meeting held on the 23rd of December, 1994, the A quo

judge, in not declaring that the intended actions were

admissible (which he declares to be contrary to law in the

"CONSIDERING" Ninth being commented), an error was caused

against my principal, since he failed to apply the

provisions of Articles 186 and 187 of the General Commercial

Companies Law, which are hereby provided: Article 186 of

the GCCL. The call to general meetings shall be made by

means of the publication of a notice in the official gazette

of the entity of the domicile of the corporation or in one

of the newspapers of major circulation in said domicile

within a period in advance of the meeting as established in

the By-laws or, as the case may be, fifteen days prior to

the date indicated for the meeting. During all of this

period of time, the report referred to in the general

statement of Article 172 shall be at the disposal of the

stockholders, at the offices of the corporation.--- Article

187, GCCL.- The call to Meetings shall contain the agenda

and carry the signatures of the person(s) issuing same.---

In fact, these two articles shall not apply, since in

reading the minutes of the Meeting of December 23rd,

1994, it has been observed that the corresponding call was

not issued and, therefore, it is evident that the

resolutions adopted in same appear to be null and void,

situation which was not declared by the A quo judge, causing

an error to the appellant in not applying said articles in

relation to Art. 188 of the same ordinance, which in a

meridian manner indicates: Article 188, GCCL.- All

resolutions at a Meeting taken in violation of the

provisions of the two articles preceding, shall be null and

void, except in the event that at the time of voting, the

total number of shares were represented.--- It is evident

that the error being discussed is admissible, in view of the

fact that the total number of shares were not represented,

principally because Mr. MORENO MOLINA, as already stated,

was subject to the express prohibition of the law of being

the attorney in fact of Mr. Hermiston or of any other

stockholder, his participation in the Meeting and

consequently the resolutions taken thereat, being null and

void; secondly, Mr. Pedro Villagrán Ochoa sold his shares

on the 22nd of December, 1994, that is, one day prior to the

alleged Meeting of December 23, 1994, for which reason the

capital stock was not represented in any part whatsoever.

The previous fact was not evaluated by the A quo judge, as

can be seen from the testimony given by Mr. J. Pedro

Villagrán Ochoa in his own right and as the presumed

representative of Minera Summit de México, S.A. de C.V.. In

answering the lawsuit on Page 8 of said communication, he

stated: "This fact is partially true, since it is false

that FIDEL GONZÁLEZ gratuitously assigned to Mr. LEMAS the

stock rights of Mr. HERMISTON. What FIDEL GONZÁLEZ did,

in exercise of his powers, was to rescind the contract of

the assignment of stock rights entered into on the 22nd of

December, 1994 with Mr. Hermiston ...".- From this simple

transcription, it is apparent that Mr. J. PEDRO VILLAGRÁN

OCHO, in his own right and in his presumed representation of

Minera Summit de México, S.A. de C.V., confessed that on the

22nd of December, 1994, he sold his shares to the appellant

plaintiff, it being legally impossible to represent 51% of

the capital stock at the Meeting held on the 23rd of

December, 1994, situation which the A quo judge failed to

evaluate, causing an error against my principal. If he had

evaluated this proof in accordance with the provisions of

Article 1212 of the Commercial Code, he would have concluded

that said Meeting was invalid because it was not attended by

those persons who at that moment represented the total or

60% of the capital stock required for incorporation, which

Article 1212 of the Commercial Code in effect establishes.

Article 1212, Commercial Code.- The confession made before

a competent judge is judicial in answering a lawsuit,

or in answering interrogatories.--- The A quo judge

committed an error against my principal in not taking into

account the judicial testimony given by Pedro Villagrán

Ochoa in his own right, and in his presumed representation

of Minera Summit de México, S.A. de C.V., in answer to the

lawsuit, in view of the fact that if he had evaluated same,

it is evident that he would have declared the nullity of the

Meeting held on the 23rd of December, 1994, which was

justified because the capital stock was not thereat

represented by any person whatsoever.--- FIFTH ERROR. The

A quo judge commits an error prejudicial to my principal in

indicating on pages 24 and 25 of the sentence being

appealed: ".... nevertheless, the principal claim,

contained in clause h) is unfounded ... (Transcribe

reasoning in "CONSIDERING" Tenth).--- It is evident that

the A quo judge commits an error causing injury to my

principal by declaring the action of clause h) and all

subsequent actions arising therefrom inadmissible, in view

of the fact that Mr. MORENO MOLINA was only authorized to

appear at the incorporation of Minera Summit, and not to

participate in the appointment of the persons indicated in

the transitory articles, since this constitutes a different

act, e.g., a stockholders' meeting, reason for which the

judge in the court files failed to apply Article 2553 of the

Civil Code for the Federal District and Paragraph Fourth of

Article 2554 of the same ordinance, of suppletory

application to commercial matters, which provides: Article

2553, Civil Code.- The power of attorney shall be general

or special, those contained in the first three paragraphs of

Article 2554 being general. Any other powers shall have the

character of special.--- Article 2554, Civil Code.- In the

event of wishing to limit the powers of the attorneys in

fact in the three cases mentioned above, such limitations

will be determined specifically or a special power of

attorney will be extended.--- It is therefore concluded

that the A quo judge committed an error in not applying

these articles, thereby resolving that the attorney in fact

did not overstep his authority, inasmuch as already stated,

he was authorized to participate in the incorporation of the

company, but not to attend the meeting held immediately

afterwards in which Pedro Villagrán Ochoa was named attorney

in fact, added to the fact that Mr. MORENO MOLINA was

appointed Secretary of the Board of Directors, as commented

in the Error preceding (arguments which to avoid unnecessary

repetition, I request be considered as if here reproduced),

which would not allow him to represent the plaintiff at the

meeting held immediately after the incorporation.--- SIXTH

ERROR.--- SOURCE OF ERROR.--- The Judge erroneously

considers in his "CONSIDERING" Eleventh, with respect to the

power of attorney granted by DAVID LESLIE HERMISTON on the

Eighth of December, Nineteen hundred and ninety-four, in the

name of Fidel J. González Lewis, that it was not translated

in its entirety, whereas precisely by means of the ruling of

the 30th of June, 1998, this document, accompanied by its

respective translation was admitted, added to the fact that

the contents of the power granted did not include the

express authority to make donations, situation demonstrating

that this power did not exist in such document and, in any

case, it corresponded to the respondents to accredit the

power in question.--- The part of the sentence that causes

the error in injury to myself, is the statement contained on

pages 26 and 27: "The foregoing is due to the fact that

although it is true that a copy of the power of attorney

granted by DAVID LESLIE HERMISTON on the Eighth of December,

Nineteen hundred and ninety-four to Fidel J. González Lewis

is in the court files, the shares contained in clauses P, Q,

R, S, T and U and subclauses i), ii) and iii) depend on the

nullity of the power of attorney in question, document which

in ruling dated the Thirtieth of June, 1998, was admitted as

an exact copy of the subject document, accompanied by a

translation into Spanish, i.e., Exhibit 10; it is also true

that it is not translated in its entirety, and in some

spaces the phrase "illegible word" appears, document which

is a necessary requirement for this judge to be able to

analyze what powers were granted to Fidel J. González Lewis

and thus determine whether he was given the authority to

make donations in the name and for the account of the

plaintiff; making it necessary, therefore, for the

plaintiff party to have offered expert proof of the

translation of the language because in this case special

knowledge is required to clarify the sense of the power of

attorney granted, pursuant to Article 1252 of the Commercial

Code in force.--- LEGAL PROVISIONS VIOLATED.--- The A quo

judge commits an error prejudicial to the appellant in

failing to interpret and apply the suppletory clauses

contained in Article 2nd of the Commercial Code, since in a

more than baseless manner the assumptions within the

following articles of the Civil Code for the Federal

District were violated.--- Art. 8.- The acts performed

against the nature of prohibitive laws or those of public

interest shall be null and void, except in the cases in

which the law orders the contrary.- Art. 15.- Foreign

rights shall not be applicable: I. When fundamental

principles of Mexican law have been ingeniously evaded, the

judge having to determine the fraudulent intention of such

evasion; II. When the provisions of foreign law or the

result of its application are contrary to the principles of

Mexican public order.- Art. 19.- The judicial

controversies of civil order must be resolved pursuant to

the letter of the law or its legal interpretation, and in

the absence of the law, these conflicts shall be resolved in

accordance with the general principles of law.--- From the

foregoing, it is obvious that the judge has failed to apply

the Federal Notaries Public Law in force for the Federal

District, forgetting that Article 92 thereof specifies the

form in which powers of attorney outside of the Mexican

Republic must be granted, this precept being transcribed

below:--- Art.92.- The powers of attorney conferred

outside of the Republic, with the exception of those granted

before Mexican consuls abroad, once legalized, must be

officially registered with a notary in order to come into

effect according to law.--- The presumed power of attorney

of the 8th of December, 1994, lacks the requirement of

notarization, as well as its execution before a Mexican

consul abroad, containing only the respective legislation

before the Consul, which is insufficient and ineffective to

represent Mr. David Leslie Hermiston in any act within the

Mexican Republic and even less so to pretend in a more than

malicious manner to use it to cause a damage of such

magnitude to his patrimony, manifestly violating the

principle figure of the power of attorney, which is to

preserve the capital of its principal, by exceeding the

limits of such power of attorney.- Mr. Fidel González Lewis

violates the spirit of Article 2563 of the Civil Code for

the Federal District, which indicates the following: Art.

2563.- In matters not expressly provided and prescribed by

the principal, the attorney in fact shall always consult

same, provided the nature of the business so allows.- If

this consultation were not possible or the attorney in fact

were authorized to act at its discretion, it will act with

the prudence required, taking care of the business as if it

were its own.--- The preceding provision was manifestly

violated by the presumed attorney in fact who at no time

took care of the patrimony as if it were his own, inasmuch

as by means of an letter without authority or a special

power of attorney, he tried to donate the shares which

formed an important part of the assets of Mr. DAVID LESLIE

HERMISTON.--- In the same manner, the theses of

jurisprudence transcribed below were violated, such

specifying in the clearest manner the obligation of the

attorney in fact to preserve the patrimony of the principal

and to avoid at any cost its disintegration, except in the

event of special permission granted in a specific clause.

"Novena Época". Instance. First Court.- Source: Judicial

Weekly of the Federation and its Gazette. Tome: VI,

September 1997.- Thesis: la./J.34/97 - Page 213.- DONATION.

ATTORNEY IN FACT. LACKS POWERS TO ENTER INTO A CONTRACT

OF, WHEN IN THE GENERAL POWER OF ATTORNEY FOR ACTS OF

OWNERSHIP THE INSERTION OF A SPECIFIC CLAUSE IS OMITTED

WHICH AUTHORIZES THE REALIZATION OF THE LEGAL ACT OF

DISPOSAL (ARTICLES 2554 OF THE CIVIL CODE FOR THE FEDERAL

DISTRICT AND 2528 OF THE CIVIL CODE FOR THE STATE OF

CHIAPAS).- .... (Transcription of thesis).--- In his

intention to reduce the probatory value of the proof, the

Judge, contrary to the thesis of the Eighteenth Circuit

Court of Associate Justices, indicates the obligation of

obtaining expert proof of the translation of the language,

when in the initial complaint, in Exhibit number 10, the

translation into the Spanish language of said document was

indicated, and at no time, either onerously or gratuitously,

does the word donation appear. The following thesis is

transcribed below: "Novena Época". Instance. Eighteenth

Circuit Court of Associate Justices.- Source: Judicial

Weekly of the Federation.- Tome: X, October, 1992.- Page

324.- DOCUMENT EXHIBITED IN FOREIGN LANGUAGE, MUST BE

ACCOMPANIED BY TRANSLATION.- ...(Transcription of thesis).--

- In addition to everything else, the Judge fails to apply

Article 2554 of the Civil Code for the Federal District,

indicating: "... In general powers of attorney to exercise

acts of ownership, it will be sufficient to state that the

powers are granted in that capacity so that the attorney in

fact will have all of the powers of ownership, both with

respect to assets as well as to carry out all manner of

procedures to defend them. In the event of wishing to limit

the powers of the attorneys in fact in the three cases

mentioned above, such limitations will be determined

specifically or a special power of attorney will be

extended. Notaries shall insert this article in the

official transcript of the powers of attorney thereby

executed". In a harmonious interpretation of the Civil Code

for the Federal District and Articles 90 and 92 of the

Notaries Public Law for the Federal District, it can be

deduced that only the powers of attorney granted outside of

the Republic can be officially registered with a notary,

pursuant to the laws of public order, so that their effects

are according to law, that is, the power of attorney

referred to by the Judge violates the reasoned application

of the laws of public order; it is therefore inoperative

and should be sanctioned by declaring its nullity and that

of its legal effects. In not doing so, this would be

contrary to the nature of the laws of civil order, as well

as the rules of individual guarantees and the

hierarchy of the application of the laws comprising our

magna charta.--- Based on the foregoing statements and

information, I request that the sentence dictated by the A

quo judge be revoked, in order to compensate for the above

mentioned errors, thereby achieving the nullity of the power

of attorney granted to Fidel J. González Lewis.--- The part

of the sentence of the A quo judge shown on Page 26 also

represents an error, as follows: "Under these conditions

and taking into consideration that Article 1194 of the

Commercial Code establishes that, "he who affirms is obliged

to prove.- Consequently, the plaintiff must prove his

action and the accused his exceptions", it is unquestionable

that the plaintiff had the obligation of proving that among

the powers granted to Fidel J. González Lewis the authority

to make donations in his name and for his account was not

included, which did not occur in this case.--- For the

purpose of economy in the proceedings and to avoid

unnecessary repetitions, it can be concluded that the power

of attorney granted by DAVID LESLIE HERMISTON on the 8th of

December, 1994, to Fidel J. González Lewis is in accordance

with the respective Mexican legal ordinance and the

analogous interpretation thereof and is inadequate to make

donations, since in the body of that document the authority

to do so, or a special power of attorney to make said

donations, does not appear; there is no doubt that the

judge, in trying to interpret what is not legible, and

because of the word donation, causes an error of irreparable

damage dictating a sentence which is more than incongruent,

in this manner violating the principle of procedural

equality, by evaluating the evidence without taking into

account the attached translation into Spanish, as well as

the formalities that the Notaries Public Law for the Federal

District imperatively demands, which is the suppletory

federal legislation to formalize the acts realized abroad

with legal effects within the Mexican Republic. In the same

order of ideas, the sentence omits the suppletory

application, as has already been demonstrated, of the Civil

Code for the Federal District, in accordance with Article 2

of the Commercial Code which, to the letter states: LEGAL

PROVISION VIOLATED. - Art. 2.- In the absence of provisions

in this ordinance and in other commercial laws, those of the

general or civil law contained in the Civil Code applicable

in federal matters, shall be applied to acts of commerce.---

For this reason, the sentence dictated by the A quo judge

should be revoked since it is not according to Law,

violating provisions applied to this concrete case, said

judge not declaring the nullity of the illegal acts carried

out with the alleged mandate of donation, which as already

indicated, is nonexistent.--- SEVENTH ERROR.- SOURCE OF

ERROR.--The often cited sentence constitutes a source of

error dictated by the A quo judge in Plenary Mercantile

Lawsuit number 1/96, dated the 25th of October of the year

2001. which on Page 27, "in fine" indicates the following:

..."In his incidental complaint the incidental plaintiff ...

(Transcribe reasoning, "CONSIDERING" Twelfth).--- In

effect, the Judge caused the error because he failed to

correctly apply the provisions of Article 192 of the General

Commercial Companies Law, in relation to Articles 6, 8, 10,

11, 12, 19, 1801 and 2224 of the Civil Code for the Federal

District, which to the letter, states: Article 192 (GCCL).-

"The stockholders may be represented at the meetings by

agents, whether forming part of the corporation or

not. The representation shall be conferred in the manner

prescribed in the By-Laws and, in the absence of a

stipulation, in writing.--- Neither the administrators nor

the statutory auditors may be legal representatives of the

corporation.--- It is evident that upon being appointed

Secretary of the Board of Directors in the Meeting held on

October 13, 1992, Mr. FRANCISCO JAVIER MORENO MOLINA was

legally impeded from representing Mr. DAVID LESLIE HERMISTON

CHESTER at the Meeting held on the 23rd of December, 1994,

in virtue of the provision of the previously invoked

article, containing the rule prohibiting administrators and

statutory auditors from being attorneys in fact of

stockholders at stockholders' meetings. Therefore, the A

quo judge who incorrectly interprets this article, commits

an error against my principal, as established in the Civil

Code for the Federal District, of suppletory application to

commercial matters.--- Article 6, Civil Code of the Federal

District.- The will of individual parties shall not exempt

them from observing, nor shall they alter or modify, the

law. Only the private rights not directly affecting the

public interest may be waived, provided such waiver does not

damage the rights of third parties.--- From what is

evident, supposing without conceding that my principal had

signed the power of attorney in question, with knowledge of

the provision of Article 192 of the General Commercial

Companies Law, this legal phenomenon is null and void

because the will of private parties cannot be placed above

what is set forth by the legislator in the rules of public

order. To the contrary, and in accordance with the article

that in the same manner has been violated by the A quo

judge, transcribed hereinbelow, the contents of the

aforesaid Article 192 is a prohibitive rule of public order,

which society requires be rigorously observed.--- Article

8, Civil Code of the Federal District.- The acts performed

against the nature of prohibitive laws or those of public

interest shall be null and void, except in the cases in

which the law orders the contrary.- This Article 8 was also

ignored by the natural judge who has general jurisdiction

over the issue. If he had complied therewith, because the

law must be observed without argument, he would have

evidently concluded, as the judge did, in the legal bases

for the actions studied in "CONSIDERING" Ninth, in which an

error is committed against my principal, that, "...entering

into a contract in contravention of said provision does not

have the legal consequence of declaring the nullity ..."

Because from the article previously studied, it is apparent

that the law does provide a logical and legal consequence

for those acts which contravene the stipulations of

Article 192 of the General Commercial Companies Law, there

being no argument whatsoever to the contrary, therefore

indicating that the A quo judge did not apply the provisions

of Article 10 of the Civil Code for the Federal District.-

The disuse, custom or practice to the contrary cannot be

argued against the observance of the law.--- It is thus

clear that Article 192 of the General Commercial Companies

Law, establishes an express prohibition, which evidently

results in the absolute nullity of the act. It is pertinent

to emphasize that in no part whatsoever of the commercial

legislation cited is a cause for exception established which

justifies its lack of application; the Third District Judge

of Sonora, therefore, omits the application of the

provisions established in Article 11 of the Civil Code of

the Federal District.- The laws which establish exceptions

to the general rules are not applicable to any case

whatsoever which has not been expressly specified in the

same laws.--- This is another error against my principal

because if a hypothesis of exception does not exist, it is

evident that Article 192 of the General Commercial Companies

Law will be brought up to date by any act performed by a

member of the Board of Directors who is the attorney in fact

of a stockholder in a stockholders' meeting; it is clear,

in accordance with the legislation invoked and not applied

by the A quo judge, that it will end in the nullity of the

act; since in this concrete case, these provisions must be

applied because the acts that we are requesting be

invalidated, were realized within the national territory,

and finally, the Third District Judge failed to consider the

spirit of Article 12 of the Civil Code for the Federal

District.- Mexican law governs all of the persons located

within the Mexican Republic, as well as the acts and events

occurring in its territory or under its jurisdiction, and

those persons subject to such laws, except when such persons

take steps for the application of a foreign right, and also

with the exception of the provisions of the treaties and

conventions in which Mexico participates.--- From which it

is obvious that although Mexican law governs the matter

under discussion, the A quo judge failed to apply Mexican

law, because the natural judge should have resolved the

matter by strictly adhering to and applying the law, and in

not doing so, also failing to apply the law, again caused an

error against my principal, as Article 19 of the Civil Code

for the Federal District, indicates: Article 19, Civil

Code for the Federal District.- The judicial controversies

of civil order must be resolved pursuant to the letter of

the law or its legal interpretation, and in the absence of

the law, these shall be resolved in accordance with the

general principles of law.--- Finally, the A quo judge does

not take into consideration that the contents of Article 192

of the General Commercial Companies Law, is closely linked

with Article 1801 of the Civil Code for the Federal District

which, in a much more conclusive manner than the first,

indicates: Article 1801, Civil Code for the Federal

District.- No person shall enter into a contract in the

name of another person without authorization thereby or by

the law.--- That is, the subject Article 192, in

prohibiting that administrators may not be attorneys in fact

of the stockholders at stockholders' meetings, it is evident

that the law does not authorize contracting in their name,

which is evidence of the lack of legality of their acts, and

the consequent nullity thereof, provisions which the A quo

judge fails to apply, causing another error against the

appellant.--- In conclusion, therefore, since the

administrator is not able to represent the stockholder at

the meeting of the corporation, it is clear that no

representation exists and for this reason there is an

absence of will that, according to Article 2224 of the Civil

Code for the Federal District, as well as Articles 1792 to

1811 of the same ordinance, provides a nuance of

nonexistence or nullity of the act carried out, circumstance

which is neglected by the natural judge, thus causing

an error against my principal.--- Article 2224, Civil

Code for the Federal District.- The nonexistent juridical

act which due to a lack of consent or of objective, which

could be the subject thereof, shall not produce any legal

effect whatsoever. It is not susceptible to confirmation,

nor by prescription; its nonexistence can be invoked by all

interested parties.--- Once it has been clearly understood

that Mr. DAVID LESLIE HERMISTON was not legally represented

at the meeting held on the 23rd of December, 1994, the A quo

judge, in not declaring that the intended actions were

admissible (which he declares to be contrary to law in the

"CONSIDERING" Ninth being commented), an error was caused

against my principal, since he failed to apply the

provisions of Articles 186 and 187 of the General Commercial

Companies Law, which are hereby provided: Article 186 of

the GCCL. The call to general meetings shall be made by

means of the publication of a notice in the official gazette

of the entity of the domicile of the corporation or in one

of the newspapers of major circulation in said domicile

within a period in advance of the meeting as established in

the By-laws or, as the case may be, fifteen days prior to

the date indicated for the meeting. During all of this

period of time, the report referred to in the general

statement of Article 172 shall be at the disposal of the

stockholders, at the offices of the corporation.--- Article

187, GCCL.- The call to Meetings shall contain the agenda

and carry the signatures of the person(s) issuing same.---

In fact, these two articles shall not apply, since in

reading the minutes of the Meeting of December 23rd,

1994, it has been observed that the corresponding call was

not issued and, therefore, it is evident that the

resolutions adopted in same appear to be null and void,

situation which was not declared by the A quo judge, causing

an error to the appellant in not applying said articles in

relation to Art. 188 of the same ordinance, which in a

meridian manner indicates: Article 188, GCCL.- All

resolutions at a Meeting taken in violation of the

provisions of the two articles preceding, shall be null and

void, except in the event that at the time of voting, the

total number of shares are represented.- It is evident that

the error being discussed is admissible, in view of the fact

that the total number of shares were not represented,

principally because Mr. MORENO MOLINA, as already stated,

was subject to the express prohibition of the law of being

the attorney in fact of Mr. Hermiston or of any other

stockholder, his participation in the Meeting and

consequently the resolutions taken thereat, being null and

void; secondly, Mr. Pedro Villagrán Ochoa sold his shares

on the 22nd of December, 1994, that is, one day prior to the

alleged Meeting of December 23, 1994, for which reason the

capital stock was not represented in any part whatsoever.

The previous fact was not evaluated by the A quo judge, as

can be seen from the confession made by Mr. J. Pedro

Villagrán Ochoa in his own right and as the presumed

representative of Minera Summit de México, S.A. de C.V.. In

answering the lawsuit on Page 8 of said communication, he

stated: "This fact is partially true, since it is false

that FIDEL GONZÁLEZ gratuitously assigned to Mr. LEMAS the

stock rights of Mr. HERMISTON. What FIDEL GONZÁLEZ did,

in exercise of his powers, was to rescind the contract of

the assignment of stock rights entered into on the 22nd of

December, 1994 with Mr. Hermiston ...".- From this simple

transcription, it is apparent that Mr. J. PEDRO VILLAGRÁN

OCHO, in his own right and in his presumed representation of

Minera Summit de México, S.A. de C.V., confessed that on the

22nd of December, 1994, he sold his shares to the appellant

plaintiff, it being legally impossible to represent 51% of

the capital stock at the Meeting held on the 23rd of

December, 1994, situation which the A quo judge failed to

evaluate, causing an error against my principal. If he

had evaluated this proof in accordance with the

provisions of Article 1212 of the Commercial Code, he would

have concluded that said Meeting is null and void because it

was not attended by those persons who at that moment

represented the total or 60% of the capital stock required

in the incorporation, which Article 1212 of the Commercial

Code in effect establishes. Article 1212, Commercial Code.-

The confession made before a competent judge is judicial

in answering a lawsuit, or in answering

interrogatories.--- The A quo judge committed an error

against my principal in not taking into account the judicial

testimony given by Pedro Villagrán Ochoa in his own right,

and in his presumed representation of Minera Summit de

México, S.A. de C.V., in answer to the lawsuit, in view of

the fact that if he had evaluated same, it is evident that

he would have declared the nullity of the Meeting held on

the 23rd of December, 1994, which was justified because the

capital stock was not thereat represented by any person

whatsoever.--- SOURCE OF ERROR.--- The often cited sentence

constitutes a source of error dictated by the A quo judge in

Plenary Mercantile Lawsuit number 1/96, dated the 25th of

October of the year 2001 which on Page 29, "in fine",

indicates the following: Finally, taking into account that

Article 1327 of the Commercial Code establishes two points,

"the sentence shall exclusively cover the actions deduced

and the exceptions opposed, respectively, in the lawsuit and

the answer thereto", from which it is inferred that the case

in the plenary mercantile lawsuit is based on the facts on

which the plaintiff bases its action, expressed in its

initial complaint, and those on which the respondent bases

its exceptions; consequently, if the plaintiff bringing the

incidental action does not indicate the cause of the

pretended nullity in its incidental complaint, in this

respect it is unquestionable that it did not form part of

the case, so that aside from the fact that proof was offered

and contributed tending to demonstrate such facts, this

Judge is not obligated to study the matter nor the proof

submitted for that purpose, for which reason the analysis of

the different means of conviction offered by the incidental

plaintiff are omitted, of which the "CONFESSIONAL"

depositions were admitted, on the part of JESÚS PEDRO

VILLAGRAN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, RAÚL LEMAS

POMPA, FRANCISCO JAVIER MORENO and FIDEL GONZÁLEZ LEWIS, and

the DOCUMENTARY EVIDENCE consisting of the ASSIGNMENT

CONTRACT and public deed 6,329, volume 261, executed before

Attorney Rubén Díaz Vega; in view of the fact that to do so

would be contrary to the principle of congruity which must

prevail in all judicial resolutions.- LEGAL PROVISION

VIOLATED.- Article 1327 of the Commercial Code, as well as

Article 77 of the Code of Civil Procedures for the State of

Sonora have been violated because the supervening action

must be admitted inasmuch as the concept of the lawsuit is

also contained in its amendment, which is exercised once it

is known that a new supervening action exists; in the same

way that in the answer to the lawsuit, it is understood that

it is amended by means of a supervening exception. This,

because if we were to consider the contrary, it could be

concluded that the application of the supervening exception

provided in Article 1329 of the Commercial Code is not

correct, for which reason it was set forth in a

communication which is not the answer to the lawsuit, and

could not be studied in the sentence either.- In this same

order of ideas, it is possible to establish that the

suppletory application of Article 256 of the Code of Civil

Procedures for the State of Sonora is not contrary to the

rule of Article 1327 (?) of the Commercial Code, which does

not specifically contain a prohibition of suppletory

application of the subject numeral of the adjective law, but

only the features which any commercial lawsuit should have

at the time of dictating the sentence. Therefore, we must

conclude that the application of numeral 154 of the

Commercial Code is and must be applicable in a suppletory

manner, recurring to the provisions established by the civil

adjective law of the entity which, in its Article 156

provides the possibility that the parties, up to the time

prior to the corresponding sentence, can present themselves

within the same lawsuit to effect actions directly related

to the same business which have arisen from supervening

causes subsequent to the date of the lawsuit, so that the

contending parties can have the same opportunities of action

and defense. It must thus be concluded in a preponderant

manner that the legal figure denominated "supervening

action" is the legal power that the plaintiff party has to

provoke the action of judgment of the jurisdictional body

which is hearing the controversy, to decide with respect to

new litigation of interest, related to the prior litigation

of which it had no knowledge, because it had arisen

subsequent to the legal jurisdiction of the plaintiff.---

The A quo judge openly disobeys the sentence dictated by the

Second Unitary Court of this Fifth Circuit, which declares

the legal basis and admittance of said action. Therefore,

the sentence being appealed must be revoked, admitting the

proofs and taking into account the testimonies of the

respondents, Messrs. Jesús Pedro Villagrán García, Jesús

Pedro Villagrán Ochoa, Raúl Lemas Pompa, Francisco Javier

Moreno and Fidel J. González Lewis, and the documentary

evidence existing in the assignment contract and public deed

6,329, volume 261, executed before Attorney Rubén Díaz Vega.

in failing to do so, the A quo judge incurs in a reckless

manner in conduct aimed at causing irreparable damage

against me, the revocation of the appealed sentence being

therefore invalid.--- EIGHTH ERROR.--- The A quo judge who

caused my principal damage in indicating on Page 26 of the

sentence being opposed, "Under these conditions and taking

into consideration that Article 1194 of the Commercial Code

establishes that, "he who affirms is obliged to prove.-

Consequently, the plaintiff must prove his action and the

accused his exceptions", it is unquestionable that the

plaintiff had the obligation of proving that among the

powers granted to FIDEL J. GONZÁLEZ LEWIS, making donations

in his name and for his account was not included, which did

not occur in this case. This Judge is not unaware that in

communication received by this Court on the Twenty-second of

September, Nineteen hundred and Ninety-nine, said party

offered several means of proof. Nevertheless, such proof

was not admitted because his offer was made

extemporaneously, this determination being firm, by reason

of the fact that the Court of Appeals rejected the appeal

brought by the plaintiff against said determination.--- On

the other hand, it should be stated that it is unnecessary

to begin the study of the proofs submitted by the respondent

parties, FARALLÓN MINERA MEXICANA, S.A. DE C.V. and JESÚS

PEDRO VILLAGRÁN GARCÍA, based on the fact that the plaintiff

did not prove their actions, reason for which the actions

exercised by the plaintiff referred to in this "CONSIDERING"

are declared unfounded and inadmissible, resolving that the

respondents are absolved from payment of the benefits

claimed in the lawsuit. Of course, this causes injury in

view of the fact that he failed to correctly apply the

provisions of Article 266 of the Code of Civil Procedures

for the State of Sonora, as well as Articles 1324 and 1327

of the Commercial Code, which to the letter, state: Article

266.- The proof must be offered in relation to the points

of the lawsuit or answer which serve to demonstrate the

facts. The offer will be made complying with the requisites

that this Code indicates, especially with respect to each of

the different means of proof.--- I.- (...). II. The

documents and proofs that accompany the lawsuit and

answer and any additional communications, shall be

accepted as evidence, although the parties do not offer

same.--- As can be seen in the previous transcription, the

article invoked provides that the official judge must

consider each and every one of the proofs offered by the

respondent party, inasmuch as these are fundamental to

adequately resolve the business under discussion.

Therefore, it is obviously an infringement of the provisions

of the adjective law of this free and sovereign state, that

the Third District Judge in the court files reasons

incorrectly in not considering it necessary to study the

evidence offered by the respondent, which is fundamental on

this matter for an adequate and correct application strictly

adhering to law; accordingly, in conclusion, we must state

that it is imperative that for an adequate and accurate

resolution it is necessary that the evaluation of the proofs

be made by the judge in its entirety.--- "Novena Época".

Instance. Second Circuit Court in Labor Matters of

Associate Justices in Labor Matters.- Source: Judicial

Weekly of the Federation and its Gazette. Tome: VIII,

October, 1998.- Thesis: II.T.19 K - Page 1195.- PROOFS,

JUDGMENT OF.-... (Transcription of thesis).--- As can be

seen from the previous thesis, the judge is obligated to

provide a logical argument by means of which it proves or

rejects each of the proofs in accordance with what the

parties pretend to prove in offering same. It is evident,

therefore, that the Third District Judge did not make said

evaluation and the evidence offered by the parties to

accredit both actions as well as exceptions was left

unestimated.--- Article 1324.- All sentences must be based

on the law and if neither by its natural sense or by the

spirit of the law can the controversy be decided, these

shall be resolved in accordance with the general principles

of law, taking all of the circumstances of the case into

consideration.--- As set forth in the previous legal

precept, in the first place the judge must base its decision

by strictly adhering to Law or, as the case may be, based on

the nature and spirit of the case being judged or founded on

the general principles of law, in addition to taking each

and every one of the circumstances of the case into

consideration. In this case in particular, the judge

directly violates these legal precepts in not applying in a

correct manner the provisions invoked in the Commercial

Code, in not considering it necessary to evaluate the proof,

and by not reasoning coherently based on the proof offered

by the parties. Therefore, it is apparent that his decision

lacks cohesion in not providing the proof offered both by

the plaintiff as well as the respondents with its exact

value. --- Article 1327.- The sentence will be directed

exclusively to the actions deduced and the exceptions

opposed, respectively, both in the lawsuit and in the

answer.--- As can be seen in the often cited article, the

judge is obligated to specify the facts on which it founds

its decision, based on the evidence contained in the files.

Thus, the judge at all times and by reason of his knowledge

of Law, must evaluate the proof offered by both parties in a

precise manner, with strict adherence to Law, and not argue

in a manner, as I already stated, totally detached from Law,

i.e., not considering that it is necessary to study the

evidence offered, failing to apply the aforementioned

precepts in a logical and legal manner, and violating the

rules serving to adequately impart justice.--- "Novena

Época". Instance. Second Court of Associate Justices of

the Fifteenth Circuit.- Source: Judicial Weekly of the

Federation and its Gazette. Tome: 83, November, 1994.-

Thesis: XV-2nd.J/10.- Page 78.- PROOF, LACK OF EVALUATION

OF, IN VIOLATION OF GUARANTIES.---- (Transcription of

thesis).--- As may be observed from the thesis previously

transcribed, in abstaining from correctly evaluating the

proof, the judge violates constitutional precepts containing

individual guaranties, for which reason his performance is

in violation of the principle of evaluating the proof and

the individual guaranty to a hearing. This is because he

omitted a study of the proofs submitted by the parties

which, in our understanding, are fundamental in the case

under discussion.--- NINTH ERROR.- With respect to the

sense of the sentence, pursuant to Section 1, Article 1084

of the Commercial Code, the plaintiff is condemned to pay

the respondents, MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,

FARALLÓN MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER

MORENO MOLINA, PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN

OCHOA, KILBY DANIEL BRUCE, and THE PUBLIC REGISTRY OF

MINING, who answered the lawsuit against them, the expenses

and costs incurred in the procedures of the present lawsuit,

after having been established by means of the corresponding

incidental procedure.--- Such expenses and costs are

unwarranted because the actions of my principal are totally

feasible because their purpose is to seek the protection of

our legislation and such actions do not incur in any of the

assumptions of the sections of Article 1084 of the

Commercial Code, since my principal submitted the necessary

proofs to the judge to justify his action, in addition to

presenting the facts which are fully linked to the proof

provided, recorded in the court files.--- For this reason,

the judge caused injury to my principal by incorrectly

applying Article 1084 of the Commercial Code, which as

demonstrated in the legal bases of the preceding injuries,

Mr. David Hermiston accredited the basis for the compliant.-

--"

4th.- The items of injury stated by Attorney

Antonio Collado Mocelo, legal attorney in fact for lawsuits

and collections of DAVID LESLIE HERMISTON CHESTER are not

subject to study, for the following reasons:

According to the Mexican Legal Dictionary, edited

by the "Institute of Legal Research" of the National

Autonomous University of Mexico, Tome P-Z, Page 2524,

procedural circumstances are the requirements or conditions

which must be fulfilled for the valid initiation or

development of a proceeding or, as pertinent, to make a

pronouncement on the question of law.

If such requirements are not met or are put

together in a defective manner within the proceeding, the

proceeding, as well as the procedural legal relationship,

shall be considered invalid, which prevents the Court from

giving its opinion on the question of law of the

controversy.

Both in civil and commercial procedures, matters

on which the aforesaid procedural requirements have been

established relative to the validity of the proceeding, such

are related to the procedural exceptions, in virtue of the

fact that these are the means through which the absence of

the conditions, antecedents or (illegible .......) cited can

be objected.

Nevertheless, inasmuch as the procedural legal

relationship is of a public nature, not only through the

exceptions can the absence or the defects of procedural

requirements be established.

In effect, Article 48 of the Code of Civil

Procedures for the State of Sonora, of suppletory

application to commercial matters, provides that the

respondent may renounce the judge and assert the procedural

requirements necessary for the lawsuit to have legal

existence and formal validity as exceptions, but also, the

judge itself has the authority to enforce or officially

amend, without a request from the party, any deficiency

found in such requisites.

In this manner, an incorrect interpretation of the

provisions of said article, in relation to the varied

article 388, Sections II and III, of the ordinance cited,

allows us to conclude with respect to the procedural

requirements, that this Court must not be limited

exclusively to the errors stated by the appellant, but

rather because of the failure to remand, it is authorized to

examine that aspect in its entirety and with full

jurisdiction, adopting considerations other than the

opposing exceptions and defenses.

In support of the above, and to illustrate the

thesis of jurisprudence 96/2001, formed as a result of the

contradiction of thesis 29/2001 PS, which states: "ACTION,

THE PROCEDURAL REQUIREMENTS AND ELEMENTS THEREOF, MUST

BE ANALYZED OFFICIALLY BY THE COURT OF APPEALS, IN THE

TERMS OF ARTICLE 87, LAST PARAGRAPH, OF THE CODE OF

CIVIL PROCEDURES OF THE STATE OF JALISCO (IN FORCE AS

OF THE FIRST OF MARCH, NINETEEN HUNDRED AND NINETY-

FIVE).- Although it is true that in accordance with the

criteria sustained by the former Third Chamber of the

Supreme Court of Justice of the Nation, as a general rule,

the Court of Appeals must be limited exclusively to the

examination of the injuries, actions, exceptions or defenses

which were opportunely asserted in the first instance, and

as refers to studying the lack of basis for the action, such

examination can only begin, provided that in the list

of charges submitted for its consideration, the

corresponding disagreement is made known. It is also true

that said rule is not currently applicable in the State of

Jalisco in the case of lawsuits initiated after the First of

March, Nineteen Hundred and Ninety-five, date on which the

current text of Article 87, last paragraph of the Code of

Civil Procedures for that federal entity, came into effect,

based upon which the Court of Appeals acts in strict

adherence to the Law when studying the procedural

requirements and the elements of the action intended in an

official form, even in the absence of injuries and

exceptions. The above is so because a straight

interpretation of the provisions in the article cited, in

relation to various numerals of articles, 430 and 443, of

the subject ordinance, must be in the sense that the "ad

quem" is not constrained exclusively to carry out its

study based on the injuries which to that effect could be

expressed by the appellant, but rather as the reviewing body

and because of the lack of remanding, it is authorized to

entirely examine those aspects, with full jurisdiction,

resolving what is pertinent, even based on its own

considerations which may be other than the opposing

exceptions and defenses."

It is also justified to cite the thesis shown on

Page 109, Tome III, Second Part 1, January to June, 1989, of

the

Judicial Weekly of the Federation: "APPEALS IN CIVIL

MATTERS. THE PROCEDURAL REQUIREMENTS MUST BE

OFFICIALLY STUDIED." Although no error has been committed

in this respect, if the responsible party states that the

civil lawsuit contained various defects, which prevented

carrying out the study of the question of law of the matter,

it results that regardless of the name given to those

deficiencies, we are in the presence of procedural

requirements, such to be understood as the requisites

necessary so that the necessary legal steps can be taken to

efficiently initiate a civil proceeding and, in the case of

a matter of public order, the judicial authorities were

authorized to officially study the matter."

Thus, the analysis of the evidence of the

procedure, permits us to know that DAVID LESLIE HERMISTON,

by means of a communication presented at the Civil Reports

Clerk's Office of the District Courts situated in

Hermosillo, Sonora, filed a Plenary Mercantile Lawsuit

against MINERA SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN

MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER MORENO

MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,

JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, FIDEL J.

GONZÁLEZ LEWIS, THE PUBLIC REGISTRY OF MINING and the PUBLIC

REGISTRY OF PROPERTY AND COMMERCE OF THE JUDICIAL DISTRICT

OF HERMOSILLO, SONORA, for the following benefits, among

others:

A) Court Order of Annulment of the power of

attorney granted on the Sixteenth of November, Nineteen

Hundred and Ninety-two by DAVID LESLIE HERMISTON, in the

name of FRANCISCO JAVIER MORENO MOLINA, to represent him in

each and every one of his actions at the Meetings held of

the firm denominated, MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,

and as a consequence thereof:

1).- Court Order of Annulment of all of the

agreements or resolutions taken at the Stockholders' General

Regular(1) Meeting of MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,

held on the Twenty-third of December, Nineteen hundred and

ninety-four, in particular the annulment of the appointment

of the Sole Administrator, in the name of PEDRO VILLAGRÁN

GARCÍA, as well as the annulment of the powers and authority

conferred on said person as a consequence of that

appointment, and further, the annulment of the penalty of

Two million dollars to be covered by the subject firm or its

stockholders in the event of an extemporaneous allegation

with respect to the appointment of the Sole Administrator;

the minutes relative to the Meeting in question were

notarized on the Fifteenth of June, Nineteen hundred and

ninety-five, in public deed number 6,010, Volume 242,

executed and attested to before Attorney Rubén Díaz Vega,

Notary Public number Thirty-two, exercising and residing in

Hermosillo, Sonora.

2).- Court Order of Legal Nonexistence, due to a

lack of consent on the part of MINERA SUMMIT DE MÉXICO, S.A.

DE C.V. of the contract dated the Eleventh of January,

Nineteen hundred and Ninety-six, relative to the option with

respect to the exclusive right of the firm, FARALLÓN MINERA

MEXICANA, S.A. DE C.V. to acquire one hundred percent of the

rights of the mining concessions for the exploitation of

"CAMPO MORADO" and "LA ALIÑA", under title numbers 201017

and 100644, respectively, property of MINERA SUMMIT DE

MÉXICO, S.A. DE C.V., contract which was signed and ratified

by the parties in Mexico City, Federal District, on the

Twenty-sixth of January, Nineteen hundred and Ninety-six,

in public deed number 70,858, Book 1030 of the notarial

records of Francisco Javier Arce Gargollo, Notary Public

number Seventy-fourth of the Federal District.

3).- Cancellation of the registrations made of

said acts at the PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF

THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, under 11,652,

Book One, Volume 49, Commercial Section, and THE PUBLIC

REGISTRY OF MINING, number 152, Page 124, front and back,

Volume Three of the Book of Mining Acts, Contracts and

Agreements.

B).- Annulment of the resolution taken at the

Stockholders' General Regular(1) Meeting of MINERA SUMMIT DE

MÉXICO, S.A. DE C.V. consisting in the appointment of JESÚS

PEDRO VILLAGRÁN OCHOA, as General Attorney in Fact for

Lawsuits and Collections, Acts of Administration and

Ownership of the subject mining company, contained in

Transitory Clause Fifth of the Articles of Association of

MINERA SUMMIT DE MÉXICO, S.A. DE C.V., in Public Deed number

four thousand nine hundred and ninety-two, Volume one

hundred eighty-four, of the Thirteenth of October, Nineteen

hundred and Ninety-two, of the notarial records of Attorney

Rubén Díaz Vega, Notary Public number Thirty-two exercising

in the City of Hermosillo, Sonora.

C).- Court Order of Legal Nonexistence, due to a

lack of consent on the part of MINERA SUMMIT DE MÉXICO, S.A.

DE C.V.

of the general powers of attorney for Lawsuits and

Collections, and Acts of Administration of that firm,

granted by JESÚS PEDRO VILLAGRÁN OCHOA to KILBY DANIEL BRUCE

and RAÚL FERNANDO LEMAS POMPA, contained in public deeds

number Six thousand four hundred, Volume Two hundred and

sixty-two, dated the Twenty-seventh of March, Nineteen

hundred and ninety-six, and number Six thousand three

hundred twenty-six, Volume two hundred and fifty-eight,

dated the Third of January, Nineteen hundred and ninety-six,

respectively, both of the notarial records of Attorney Rubén

Díaz Vega, Notary Public number Thirty-two exercising and

residing in Hermosillo, Sonora.

D).- As a consequence of the above, the

cancellation of the registration of said powers before the

PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF THE JUDICIAL

DISTRICT OF HERMOSILLO, SONORA, under number (illegible),

Book One, Volume 51, Commercial Section, and number 12,126,

Book one, Volume 71, Commercial Section, respectively.

The same analysis of evidence reveals that the

Third District Judge of the State of Sonora resolving the

case, exercised the previously specified actions of nullity

and nonexistence and accredited the legitimacy both of the

procedure as well as the causes on the part of the

contending parties, and once noted, the action was exercised

by DAVID LESLIE HERMISTON, natural person to whom the Law

grants legal capacity for such an act against individual and

corporate persons, the latter against whom the actions could

be exercised having appeared at the proceeding through the

conduct of the persons authorized to do so, for which

reason, at that moment the judge dictated the corresponding

final sentence.

In accordance with the provision of Article 3rd.

of the Code of Civil Procedures for the State of Sonora, of

suppletory application to the Commercial Code, in the terms

of Article 1054 of the latter body of rules, the observance

of procedural rules is of the public order, and

consequently, for the processing and resolution of the

matters before the courts, said courts are inevitably

obligated to observe the precepts of the often cited legal

order, without any agreement on the part of the interested

parties to waive the right of recusation or to alter or

modify the other essential rules of procedure.

Based on the foregoing, it follows that if

pursuant to the rules making up Book First, Title First,

Chapter First of the aforesaid Code of Civil Procedures in

order to enforce an action being tried, it is indispensable

to bring suit before a competent judge, but not only that,

for this purpose there must also be legal interest, as well

as from whom the claim is being made, so that it be

condemned to comply with certain benefits; that the

existence or nonexistence be declared of a legitimate

interest protected by law, or a fact, act, or legal

relationship, or the authenticity or falseness of a

document, the establishment, modification or extinction of a

legal state or situation, to retain or make restitution of a

possession to any person to whom a certain thing or things

belong. This, without prejudice to the fact that Articles

61 and 69 of the same code establish the authority of the

judge, so that in those cases in which any of the parties,

who may have some legal prejudice as a consequence of the

sentence which is dictated in a certain proceeding, have not

been previously called to trial, the judge may do so, even

in an unofficial manner, for the purpose of duly integrating

the litigation, so that the sentence pronounced may have the

effect of a matter decided (res judicata) against all

interested parties who form part of the procedure.

Accordingly, if the juridical acts whose nullity

or nonexistence as actions intended by the plaintiff party,

specified at the beginning of the present "CONSIDERING",

are contained in the indicated public deeds, numbers 6010,

4992, 6400 and 6326, entered into the notarial records of

Attorney Rubén Díaz Vega, owner of record of Notary Public

number 32, exercising in this city, and under notarial

record number 70858 of Attorney Francisco Javier Arce

Gargollo, Notary Public number 74, exercising and residing

in the Federal District, the sentence which in the capacity

of "matter decided" (res judicata) is dictated with respect

to the intended actions, also affects the public deeds of

probative value, whereas those legal acts of which the

nullity and nonexistence is pretended were therein

certified; since from the moment that the action was

exercised, it was intended to change a legal situation which

was sanctioned with the notary public's certification, it is

unquestionable that in the registration of such acts, the

acting notaries public must be given a reasonable

opportunity to be heard in their defense, this being a

constitutional requirement, as concretely referred to in the

provisions of Article 24 of the Fundamental Charter of the

Union, due to the fact that, in this case, the sentence

which was dictated in the lawsuit, obligates them to

make the respective annotations in the act relative to its

registration, even if the nullity of the relative public

deeds had not been specifically requested, because if in the

last instance, the nonexistence or nullity of those acts

contained in the aforesaid public deeds were to be declared,

as a logical legal consequence, such deeds must be left

without effect, the above mentioned notaries public also

canceling their effects.

In this context, if in this case the plaintiff

party corrected its lawsuit, directing it solely against

those parties who participated in the acts related at the

beginning of this "CONSIDERING" and the parties in charge of

THE PUBLIC REGISTRY OF MINING and the PUBLIC REGISTRY OF

PROPERTY AND COMMERCE OF THE JUDICIAL DISTRICT OF

HERMOSILLO, or in the same manner, the respondents were

named, without bringing suit against the notaries public who

certified those acts, it is evident that the judge of the

first instance should have noted that in the matter at hand

an assumption of a necessary passive joinder was

applicable and that one of the parties, of which the

notaries public form part, who could resent the effects of

the sentence to be issued, had not been specified as

respondents nor were they called to the proceeding.

Accordingly, the judge was not only authorized but indeed

obligated, even in an unofficial capacity, to take the

measures necessary for the purpose of having them included

or called to trial, with the object of duly integrating the

juridical-procedural relationship. Nevertheless, this did

not occur, and therefore, considering the possibility of

putting into effect a necessary passive joinder and the

obligation on the part of the judge to call to trial all

those parties who might resent the sentence, it should not

have been issued until such requisite had been duly

fulfilled, since this was one of the procedural requirements

instituted by Law as necessary for the legal existence and

formal validity of the procedure. It is strange, therefore,

that when the nonexistence and nullity of the aforesaid

legal acts was claimed in the lawsuit, that this should

appear in the public deeds indicated. The failure to call

the Notaries public who certified said acts to trial,

represented

an insurmountable obstacle for the judge, who was prevented

from admitting the action of nonexistence of the legal acts

exercised and, as a result, consequently resolve, as is

insisted, whether he called the notaries public in question

to trial, and in spite of this issuing the corresponding

sentence. With his behavior, irregular without a doubt, and

of course, illegal, he violated the essential rules

applicable to the procedure, in prejudice of the parties,

precisely because this constitutes not only the power but

also the inevitable obligation of the judge, to analyze the

proper integration of the juridical-procedural relationship

and verify that all of the participants of the necessary

passive joinder are called to trial. If he did not do so,

as in effect occurred, under no circumstances should he have

pronounced the final sentence of the case, primarily because

not only the persons participating in the acts claimed, but

also the notaries public who notarized same, are linked to

the legal relationship generated by the intended action.

Thus, it is not possible to declare the legal basis or lack

of basis of the nullity or nonexistence of those acts

without giving said notaries the opportunity of asserting

their rights, but principally so that they will be legally

bound by the sentence, its pronouncement having no value

with respect to the plaintiff and the respondents without

considering the notary public who certified such acts, the

obligation of the A quo judge to exercise the authority held

to call them to trial being unpostponable, even officially,

for the proper integration of the legal relationship. If he

did not do this, the legal rules which have been mentioned

have been violated.

On this point, more than enlightening is the

thesis of jurisprudence number I.3rd.C J/6, published by the

Third Court of Associate Justices of the First Circuit in

Civil Matters, on Page 519, Tome III, of "Novena Época",

May, 1996, in the Judicial Weekly of the Federation and its

Gazette, containing: "NECESSARY PASSIVE JOINDER, WHEN

OCCURRING, IS THE OBLIGATION OF THE COURT TO

DILIGENTLY ANALYZE WHETHER ALL OF THE PARTICIPANTS

THEREOF HAVE BEEN CALLED TO TRIAL. When a third party

claims the nullity of a purchase and sale as well as of the

deed in which it was registered, without bringing suit

against the person who appears as the seller, nor against

the notary public who realized the notarization, regardless

of the legal figure of the necessary passive joinder, a

sentence declaring the nullity thereof cannot be dictated

because all of the parties who have an interest therein have

not been called to trial, since the seller and buyer, as

well as the notary, are linked in the legal relationship

which generated the contract and its notarization, for which

reason it will not be possible to decree the nullity only

with respect to the buyer, the only person to be called to

trial; consequently, the opportunity must be given to all

parties to participate in the trial, so that they may thus

present the pertinent defenses and be legally bound by the

sentence to be dictated on the matter; should the sentence

be pronounced in relation to one person only, the sentence

shall have no value in itself, nor would it legally resolve

the lawsuit. These circumstances lead us to the

consideration that the Court of Appeals may officially

analyze whether the participants of the necessary passive

joinder were called to trial, in order to resolve whatever

is pertinent, even when nothing is argued on the matter in

the Errors."

Furthermore, the thesis of jurisprudence number

III.3rd.C J/10, issued by the Third Court of Associate

Justices of the Third Circuit in Civil Matters, published on

Page 49, Tome 79, of "Octava Época", corresponding to the

month of July, 1994, in the Judicial Weekly of the

Federation, on this point resolved: "NECESSARY PASSIVE

JOINDER, MUST BE OFFICIALLY STUDIED". Whether as

referred to in the doctrine, "the necessary passive joinder

although not expressly established by Law, is applicable in

the following cases: When constitutive actions are

exercised with the object of establishing a new status of

laws which may only legally exist in relation to various

persons: when a suit is brought for ... the nullity of

agreements made by several persons ..." ("Diccionario de

Derecho Procesal" [Dictionary of Procedural Law]), Eduardo

Pallares, Fourth Edition, 1963, Page 504), it is

unquestionable that the case in which the request for

annulment of an agreement (of purchase and sale) arranged

between various parties, without hearing one of them, fits

that figure exactly. Afterwards, if the principal effect of

the necessary passive joinder is that there may only be one

sentence for all of the joint litigants, it is clear that it

is possible for the Court of Appeals to officially realize

the corresponding examination.

In view of this situation, since the A quo judge

was not aware of the application of the necessary passive

joinder of the case, and in not considering this factor, the

judge pronounced the final sentence of the Court of Appeals,

without taking into account the fact that the various

Notaries Public who notarized the acts in which the recourse

of nullity and nonexistence had been intended, were not

specified as respondents nor were they called to trial; in

spite of there being legal interest in the result of the

action of the subject nonexistence and nullity exercised, it

is clear that the judge violated the measures instituted in

Articles 3rd, 61 and 69, as well as the various provisions

contained in Book First, Title First, Chapter First of the

Code of Civil Procedures for the State of Sonora, suppletory

in commercial matters, as well as Articles 337, 338 and 340

of the same procedural ordinance, causing damage to the

contending parties, and particularly to the notaries public

who were not called to trial. Therefore, in accordance with

the rules of the jurisprudential theses transcribed, this

court of appeals has the authority to carry out the

corresponding analysis and call to trial the notaries public

mentioned, precisely because they have a legal interest and

passive legitimation in the proceeding for annulment of a

legal act which they have notarized, taking into account

that should the action be in order, they must make the

corresponding notations in their notarial records, without

prejudice to the fact that in some cases their performance

implies responsibility, as determined by the highest Court

of the Union when structuring jurisprudential thesis 3a./J.

65 15/90, published on page 233, Tome V, First Part,

"Octava Época", Third Chamber, corresponding to the issue

of January to June, 1990, in the Judicial Weekly of the

Federation, which states: "NOTARY PUBLIC, HAS PASSIVE

LEGITIMATION IN THE PROCEEDING FOR ANNULMENT OF A DEED

EXECUTED BEFORE SAME." When the annulment of a public

deed is requested, the notary public before whom it was

executed must necessarily intervene, since in the event that

the action is according to law, the Notary must make the

respective notation in his notarial records and because, in

addition, in some cases his performance is coupled with the

responsibility, due to either fraudulent or guilty conduct".

As a consequence of the foregoing, to repair the

legal damage caused, it is imperative to revoke the final

sentence sent to the Court of Appeals, and for the same

reason, to leave his decisions without justification for the

purpose of reserving or holding the rights of the parties

harmless so that they can be asserted as corresponds,

according to Law and their legal interests. This

necessarily implies that the plaintiff shall prepare a new

lawsuit in which he names as respondents all of the persons

who may be affected by the decision pronounced, or in the

same manner, again exercises his actions and includes

as respondents both the persons who participated in the

performance of the legal acts of which he pretends

the nullity and nonexistence, as well as the notaries

public who certified the acts and executed the deeds

containing same.

In this regard, in support of the previous

conclusion, the thesis of jurisprudence applicable, which

resolved the Contradiction of Thesis 76/2000, issued by the

First Chamber of the highest court of the Federation,

published on Page 61, Tome XIV, corresponding to the month

of December, 2001, "Novena Época" of the Judicial Weekly

of the Federation and its Gazette, in this matter resolved:

"NECESSARY PASSIVE JOINDER, THE CONSTITUTIONAL

PROTECTION GRANTED TO A JOINT LITIGANT WHO WAS CALLED

TO TRIAL AND WHO IMPUGNED THE FACT THAT ANOTHER PARTY

WAS NOT SUMMONED, SHOULD BE FOR THE EFFECT THAT THE

SENTENCE CLAIMED BE LEFT NULL AND VOID AND THE

AUTHORITY RESPONSIBLE DICTATE A NEW RESOLUTION IN

WHICH THAT OF THE FIRST INSTANCE BE REVOKED, RESERVING

OR HOLDING THE RIGHTS OF THE PARTIES HARMLESS.-

Pursuant to the provisions of Article 80 of the Law to

Guarantee Constitutional Rights, the sentence granting

constitutional protection shall have the effect of restoring

to the injured party full enjoyment of the rights of

individual guaranty violated, reestablishing things to the

status existing prior to the violation. In this regard, if

it is the joint litigant who was called to trial who invokes

such protection and impugns that another person - who enjoys

that capacity - was not called to trial, the effects of the

protective decision are that the sentence claimed be left

without effect and that the responsible authorities dictate

a new resolution in which that of the first instance is

revoked, reserving or holding the rights of the parties

harmless."

Pursuant to the foregoing statements and facts, it

is resolved that:

UNIQUE.- The final sentence of the Twenty-fifth of

October, Two thousand and one, pronounced by the Third

District Judge of the State of Sonora, contained in the

court files of Plenary Mercantile Lawsuit number 1/96,

(nullity and nonexistence of legal acts), brought by DAVID

LESLIE HERMISTON CHESTER against MINERA SUMMIT DE MÉXICO,

S.A. DE C.V. and FARALLÓN MINERA MEXICANA, S.A. DE C.V. and

FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS POMPA,

PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY

DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC REGISTRY

OF MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE

OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, each and

every one of his decisions be left null and void, holding

the rights of the parties harmless so that they can be

asserted as corresponds, according to Law and their legal

interests.

NOTIFY PERSONALLY TO THE PARTIES at the domiciles

indicated to that effect, and once the foregoing has been

done, remit evidence of this resolution and its

notifications to the Third District Judge in the State of

Sonora, located in this city, as well as of Plenary

Mercantile Lawsuit number 1/96, consisting of four tomes and

three notebooks of proofs; effect the corresponding

notations in the book of government and statistics,

opportunely filing the case as a matter concluded.

Resolved and signed by the Civil Court Judge of

the First Unitary Court of the Fifth Circuit, Attorney Elsa

del Carmen Navarrete Hinojosa, before the Court Records

Office which authorizes and attests thereto.-

(Illegible signatures).

(In the upper left, seal of the National Emblem of Mexico, surrounded by the words, "ESTADOS UNIDOS MEXICANOS" (UNITED MEXICAN STATES), and underneath, "PODER JUDICIAL DE LA FEDERACIÓN" (JUDICIAL POWER OF THE FEDERATION). THE UNDERSIGNED, COURT RECORDS CLERK OF THE

FIRST UNITARY COURT OF THE FIFTH CIRCUIT, ATTORNEY ROSA MARÍA SANDOVAL ROMO, DO HEREBY CERTIFY AND RECORD: THAT THE PRESENT COPY IS A FAITHFUL DUPLICATE OF ITS ORIGINAL WHICH I HAVE SEEN, AND WHICH I HEREBY ISSUE BY JUDICIAL MANDATE ON THIRTY-TWO PAGES, DULY SEALED, COMPARED AND INITIALED, TO BE DELIVERED TO ATTORNEY FRANCISCO JAVIER VALENCIA DÍAZ, HERMOSILLO, SONORA, TWELFTH OF APRIL OF TWO THOUSAND AND TWO.

COURT RECORDS CLERK (Illegible signature) ATTY. ROSA MARÍA SANDOVAL ROMO (To the left, seal of the National Emblem of Mexico, surrounded by the words, "ESTADOS UNIDOS MEXICANOS" (UNITED MEXICAN STATES), and underneath, "PRIMER TRIBUNAL UNITARIO DEL QUINTO CIRCUITO EN HERMOSILLO, SONORA" (FIRST UNITARY COURT OF THE FIFTH CIRCUIT OF HERMOSILLO, SONORA). ............................................................. I, Francisco J. Laguardia, Certified Public Translator, authorized by the Honorable Superior Court of Justice of the Federal District and duly acknowledged by the Embassy of Canada in Mexico, do hereby certify that the translation preceding, consisting of 69 pages, is a true and authentic version of the original in Spanish, which I have translated to the best of my knowledge and understanding. Mexico City, Federal District, 8th of May, 2002.