Order

In its order of January 29, 2020, the Tenth Civil Court of First Instance upheld the preliminary exception of failure to fulfill a condition precedent filed by Lisa, S.A., terminating the summary damages lawsuit brought by El Llano, S.A. under Article 228 of the Guatemalan Commercial Code. The court found that Lisa's exclusion as a shareholder of El Llano was not yet final, as a summary opposition proceeding remained pending before the Seventh Civil Court of First Instance (Expediente 01048-2011-00111), which prevented the right to claim damages from arising under Article 229 of the Commercial Code. Costs were imposed on El Llano, S.A.

Case Background

El Llano, S.A., an entity in the Avícola Villalobos Group, filed a summary damages lawsuit against Lisa, S.A. The claim was grounded in Article 228 of the Commercial Code, which provides that an excluded shareholder shall be liable to the company for damages caused by the acts that motivated the exclusion. The factual basis was the exclusion resolution contained in a notarial deed of April 26, 2011, authorized by notary Alberto Antonio Morales Velasco, through which El Llano's general assembly excluded Lisa as a shareholder. The plaintiff alleged in general terms that Lisa engaged in fraudulent conduct causing financial losses in Guatemala.

Lisa, S.A. had filed a summary opposition proceeding against this exclusion before the Seventh Civil Court of First Instance (Expediente 01048-2011-00111), which had not reached a final resolution at the time this order was issued.

Defense of Lisa, S.A.

Lisa, S.A. raised six preliminary exceptions:

• Incompetence. Lisa argued that the damages originated abroad, where the sworn statement underlying the exclusion was made and where the judicial actions generating the claimed expenses were filed. Under Article 16 of the Civil and Commercial Procedure Code, the competent court would be in the place where the damages were caused.
• Defective complaint. Lisa contended that the complaint failed to identify the author of the sworn statement, did not specify the foreign judicial actions, and did not attach the essential documents supporting the claim, in violation of Articles 106 and 109 of the Civil and Commercial Procedure Code.
• Lack of standing. Lisa argued that the sworn statement was not made by Lisa but by a third party, and the action should have been directed against the author of that statement.
• Prescription. Lisa alleged that the acts motivating the exclusion predated the exclusion resolution by more than one year, and the right to claim damages had therefore prescribed under Article 1673 of the Civil Code.
• Caducidad. Lisa argued that the acts motivating the exclusion were known to the plaintiff well beyond the three-month period established by Article 230 of the Commercial Code for adopting an exclusion resolution.
• Failure to fulfill a condition precedent. Lisa argued that the exclusion contained in the notarial deed of April 26, 2011 was not final, as its legality was being contested through a summary opposition proceeding before the Seventh Civil Court (Expediente 01048-2011-00111). Claiming damages from an exclusion whose legality was still in dispute was premature.

Court's Analysis

On incompetence. The court determined that El Llano, S.A. is a company incorporated under Guatemalan law with its domicile in the department of Chimaltenango, and that the claimed damages affected its assets in Guatemala. Applying Article 16 of the Civil and Commercial Procedure Code, the court found itself competent. Exception denied.

On defective complaint. The court found that the complaint satisfied the requirements of Articles 50, 61, 106, and 109 of the Civil and Commercial Procedure Code, with sufficient clarity and precision for the defendant to respond. Lisa's arguments were characterized as substantive issues to be resolved during the proceeding. Exception denied.

On lack of standing. The court reasoned that the notarial deed of April 26, 2011 established a legal relationship between El Llano, S.A. and Lisa, S.A. under the claims in the complaint, and that arguments regarding the authorship of the sworn statement pertained to the merits. Exception denied.

On failure to fulfill a condition precedent. The court found that the lawsuit was filed prematurely. The record showed that a summary opposition proceeding challenging Lisa's exclusion as a shareholder of El Llano was pending before the Seventh Civil Court of First Instance (Expediente 01048-2011-00111) without a final resolution. Under Article 229 of the Commercial Code, the exclusion must be final before the right to claim damages arises. Because that condition had not been fulfilled, the asserted right could not be exercised. Exception upheld.

On prescription and caducidad. The court declined to rule on these exceptions, reasoning that because the exclusion was not yet final, there was no determinable date from which to compute the applicable periods.

Ruling

• The preliminary exceptions of incompetence, defective complaint, and lack of standing were denied
• The preliminary exception of failure to fulfill a condition precedent was upheld
• The proceeding was terminated and the file ordered archived
• The exceptions of prescription and caducidad were not addressed
• Costs were imposed on the plaintiff, El Llano, S.A.

Legal Basis

• Articles 12, 28 of the Constitution of the Republic of Guatemala — due process guarantees
• Articles 29, 61, 71, 75, 76, 79, 106, 107, 116, 120, 121, 126, 127, 128, 229, 576 of the Civil and Commercial Procedure Code — procedural rules governing preliminary exceptions, complaint requirements, and jurisdiction
• Articles 227, 228, 229 of the Commercial Code — shareholder exclusion, liability for damages arising from the exclusion, and the requirement that the exclusion be final as a condition for bringing the action
• Articles 135, 136, 138, 139, 140, 141, 142, 143 of the Judiciary Act — rules of statutory interpretation and application

Signatories

• Lic. Marco Vinicio González De León, Judge
• Jaime René Orozco López, Clerk

Subsequent Proceedings

Both parties appealed this order. The Third Chamber of the Court of Appeals for Civil and Commercial Matters, in its ruling of October 24, 2025, confirmed the order in full, denying both appeals.