Lisa opposes prescription appeal, argues embargoed dividends cannot prescribe and action constitutes fraud
Jun 30 2025
Lisa, S.A.
Lisa, S.A., through its legal representative Paola Arana Estrada, files its appeal brief before the Third Chamber of the Court of Appeals, Civil and Commercial Division, in Appeal 236-2024, opposing the appeal filed by Industria Avícola del Sur, S.A. against the judgment of February 12, 2024, issued by the Tenth Pluripersonal Court of First Instance, Civil Division, which dismissed the extinctive prescription action seeking to extinguish the dividend payment obligation. The brief develops three lines of defense: the obligation never became exigible, the embargoes decreed on the dividends interrupted any prescriptive computation, and the action constitutes fraud upon the law orchestrated by the same corporate group that prevents payment.
Industria Avícola del Sur, S.A. filed an ordinary action seeking extinctive prescription of its obligation to pay Lisa, S.A. the dividends decreed by the Annual Ordinary General Shareholders' Assemblies held on May 3, 2004, November 8, 2006, August 25, 2008, December 17, 2009, May 6, 2010, and April 5, 2011. The Tenth Court of First Instance, Civil Division, dismissed the complaint in its judgment of February 12, 2024. Industria Avícola del Sur appealed, and the hearing was scheduled for July 1, 2025.
On the birth of the obligation. Lisa argues that the dividend payment obligation was never perfected. Under Clause Sixteen of Industria Avícola del Sur's articles of incorporation (public deed number 19 of February 18, 1988, authorized by notary Gustavo Adolfo Forno Putzeys), the Board of Directors bears the express obligation to determine the date and form of payment of dividends approved by the Assembly. Lisa contends that while the Assemblies decreed the distribution of profits, the Board of Directors never fulfilled this requirement, leaving the obligation as a generic conditional obligation subject to a condition precedent, lacking the essential requirements for its existence as a determined and enforceable obligation. The plaintiff neither proved nor argued that this subsequent act was ever performed.
On the interruption of prescription by embargoes. Lisa argues that, even if the obligation were considered perfected, the prescriptive period was interrupted by precautionary embargo measures decreed on Lisa's dividends across multiple proceedings. The brief identifies active embargoes in the following cases:
Lisa states that these embargoes were obtained by Industria Avícola del Sur itself and by other Avícola Villalobos Group entities (Reproductores Avícolas, S.A., Compañía Alimenticia de Centroamérica, S.A., and Industria Forrajera de Mazatenango, S.A.), and that all were initiated before the prescription action was filed. Under Article 1506 of the Civil Code, prescription is interrupted by a duly notified judicial complaint or by any executed precautionary measure. Lisa highlights that Industria Avícola del Sur expressly acknowledged in its Declaration of Party during the evidentiary period that the embargoes interrupt prescription.
On the impossibility of prescription over embargoed assets. Lisa argues that the dividends, being subject to embargo, left the patrimonial sphere of both the company and the shareholder, becoming part of the embargoed patrimonial mass under the custody of the judicial depositary, a role held by Industria Avícola del Sur's own General Manager. Citing jurist Mario Aguirre Godoy, Lisa contends that an embargo limits the holder's faculties of disposition, and that extinctive prescription requires the creditor to have had free disposition over the asset, a condition that is not met while the dividends remain embargoed.
"Todo acto de disposición o gravamen sobre el bien embargado posterior a la efectividad del embargo o las medidas cautelares, que ya pesan sobre las utilidades que en este caso pretende la actora se declaren prescritos y sin obligación de pago para la actora hacia mi mandante, es ineficaz" (Page 7)
On fraud upon the law and abuse of process. Lisa characterizes the prescription action as a serious manipulation and fraud. The plaintiff entity, which obtained and maintains the embargoes on Lisa's dividends (renewing guarantee bonds year after year), now seeks to have the obligation to pay those same dividends, which it retains by judicial mandate, declared extinguished. Lisa argues that the Avícola Villalobos Group entities have used multiple proceedings with the sole purpose of appropriating Lisa's dividends and achieving illicit enrichment, retaining the funds through embargoes while simultaneously arguing that the payment obligation has prescribed due to the creditor's inaction.
Peremptory exceptions. Lisa reiterates the exceptions raised at first instance: inadmissibility of the complaint based on (a) failure to meet the legal and essential requirements to support the claim, (b) lack of legal standing to file the action, and (c) failure to meet the condition to which the asserted right is subject.