Court of Appeals confirms termination of damages suit over non-final exclusion of Lisa, S.A.
Oct 24 2025
Court of Appeals
The Third Chamber of the Court of Appeals for Civil and Commercial Matters confirmed the ruling that terminated the summary damages proceeding filed by Reproductores Avícolas, S.A. (successor to El Llano, S.A.) against Lisa, S.A. The lawsuit sought to hold Lisa, S.A. liable for damages allegedly caused by the acts that motivated its exclusion as a shareholder of El Llano, S.A. Both the first-instance court and the appellate court concluded that the claim was premature: Lisa, S.A.'s exclusion as a shareholder had not become final, as a summary opposition proceeding remained pending in Expediente 01048-2011-00111. Without a final exclusion, the condition required to demand damages under Article 228 of the Commercial Code had not been fulfilled.
El Llano, S.A. filed a summary damages action against Lisa, S.A. before the Tenth Civil Court of First Instance. 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 plaintiff alleged that Lisa, S.A. was excluded as a shareholder by resolution recorded in a notarial deed dated April 26, 2011, executed by notary Alberto Antonio Morales Velasco, based on a series of acts including the alleged purchase of a sworn declaration and judicial actions filed abroad. On appeal, the plaintiff appears as Reproductores Avícolas, S.A., corporate successor to El Llano, S.A.
Lisa, S.A. filed six preliminary exceptions: incompetence, defective complaint, lack of standing (falta de personalidad), prescription, caducidad, and failure to fulfill the condition to which the asserted right is subject. In the order of January 29, 2020, the Tenth Civil Court denied the exceptions of incompetence, defective complaint, and lack of standing; sustained the exception of failure to fulfill the condition; terminated the proceeding; and ordered the file archived. The court declined to address the prescription and caducidad exceptions, reasoning that without a final exclusion there was no determinable date from which to compute those periods.
Both parties appealed.
Reproductores Avícolas, S.A. challenged the court's sustaining of the condition exception. It argued that Article 228 of the Commercial Code does not subject the right to claim damages to any contractual clause or precondition, and that the acts generating the damages are independent of the act of exclusion itself. It contended that the first-instance court erroneously equated a judicial proceeding with a conditional juridical act governed by Articles 1269 through 1278 of the Civil Code. It also challenged the costs award, arguing it should be exempt for having litigated in good faith and because only one exception was sustained.
At the hearing, it reiterated these arguments and added that the patrimonial losses suffered by El Llano, S.A. in Guatemalan territory constituted certain and immediate damages derived from Lisa, S.A.'s wrongful conduct, and that Article 228 of the Commercial Code imposes a mandatory legal obligation, not a contractual clause subject to a condition.
Lisa, S.A. challenged the denial of its preliminary exceptions of incompetence, defective complaint, and lack of standing.
Incompetence. Lisa argued that the claimed damages originated abroad (a sworn declaration executed in Miami, Florida, and judicial actions filed in foreign jurisdictions), and that under Article 16 of the Code of Civil and Commercial Procedure, the competent court is that of the place where the damages were caused.
Defective complaint. Lisa contended that the plaintiff failed to identify with clarity and precision the alleged author of the sworn declaration, did not attach the document as essential evidence under Article 107 of the Code of Civil and Commercial Procedure, and did not identify the foreign judicial actions that allegedly caused the damages.
Lack of standing. Lisa argued that the action should have been directed against the author of the sworn declaration, not against Lisa, S.A., since the declaration was not made by Lisa, S.A.
Prescription and caducidad. Although the first-instance court did not address these exceptions, Lisa reiterated on appeal that the one-year limitation period under Article 1673 of the Civil Code had expired with respect to each of the six grounds for exclusion invoked by the plaintiff, detailing that all underlying facts were known to the plaintiff well beyond the three-month period established by Article 230 of the Commercial Code for exercising the right of exclusion.
The Court of Appeals confirmed that the damages claim was premature. It reasoned that, under Article 228 of the Commercial Code, the right to claim damages against an excluded shareholder presupposes that the exclusion is final. Because a summary opposition proceeding against Lisa, S.A.'s exclusion remained pending in Expediente 01048-2011-00111 before the Seventh Civil Court of First Instance, the condition for exercising the right had not been fulfilled.
The Court cited author Mario Aguirre Godoy to distinguish between the two scenarios covered by this exception: where a deadline has not yet passed, and where the right does not yet exist because the condition to which it is subject has not been fulfilled. It concluded that the present case fell within the second scenario.
"Esta excepción alude a los casos en que no obstante existir el derecho no puede hacerse valer, porque aún no ha transcurrido el plazo fijado (primer supuesto); o a los en que aún no existe el derecho porque la condición a que está sujeto no se ha cumplido (segundo supuesto)" (Page 20)
The Court confirmed the denial. It determined that El Llano, S.A. is a company incorporated under Guatemalan law with its domicile in Guatemala, that the alleged damages directly affected its assets in Guatemalan territory, and that under Articles 12 and 16 of the Code of Civil and Commercial Procedure the competent court is that of the place where the damages were caused.
The Court confirmed the denial. It concluded that the complaint met the formal requirements of Articles 61, 106, and 107 of the Code of Civil and Commercial Procedure, and that the points raised by Lisa, S.A. were substantive matters that could be resolved at later stages of the proceeding, not formal deficiencies in the complaint.
The Court confirmed the denial. It determined that the juridical relationship between El Llano, S.A. and Lisa, S.A. was established through the notarial deed of April 26, 2011, and that Lisa, S.A.'s argument regarding the authorship of the sworn declaration did not constitute a matter susceptible to challenge through this defense.
The Court declined to address these exceptions, confirming the first-instance court's reasoning: because the condition exception was sustained, there was no temporal basis from which to compute prescription or caducidad periods.