Appellate court affirms dismissal of prescription claim against Lisa's dividend rights and orders costs against appellant
Oct 24 2025
Court of Appeals
Guatemala's Third Civil and Commercial Chamber of the Court of Appeals confirmed the first-instance judgment that rejected the extinctive prescription action brought by Administradora de Restaurantes, S.A. against Lisa, S.A. The appellate court held that a shareholder's right to receive declared dividends is inherent to the share under Articles 15 and 105 of the Commercial Code and may be demanded at any time until the company's liquidation. With this ruling, the attempt to extinguish by prescription the dividend payment obligations decreed at seven annual shareholder assemblies held between 2001 and 2011 failed at the appellate level.
Administradora de Restaurantes, S.A. filed an ordinary action for extinctive prescription against Lisa, S.A., seeking a declaration that dividend payment obligations arising from shareholder assembly resolutions were time-barred. The assemblies in question were held on October 3, 2001, May 3, 2004, May 30, 2005, August 14, 2008, December 17, 2009, April 29, 2010, and April 5, 2011. The plaintiff argued that the five-year limitation period under Article 1508 of the Civil Code had elapsed since each obligation became enforceable.
Lisa, S.A. filed its answer on September 4, 2020, contesting the complaint and raising four peremptory exceptions: lack of truthfulness in the plaintiff's factual allegations; failure to meet the legal prerequisites for invoking prescription; interruption of prescription by judicial actions in related proceedings; and non-existence of the claimed extinctive prescription.
The Tenth Pluripersonal Civil Court of First Instance, in its judgment of October 5, 2022, rejected both the peremptory exceptions and the prescription action. The proceedings were initiated in 2017, and the first-instance judgment was issued over five years later, in October 2022.
Administradora de Restaurantes, S.A. filed an appeal, admitted on June 26, 2024, arguing that: the General Shareholders' Assembly is the competent body to decree dividend distributions; once dividends are decreed they are immediately enforceable without any additional action by another corporate body to set the form and timing of payment; and the first-instance court erred in finding that no parameter existed to determine when Lisa, S.A. acquired the right to receive the dividends. The appellant maintained that the Civil Code's general five-year limitation period should apply supplementarily.
At the appellate stage, Lisa, S.A. did not appear at the hearing. However, the defenses articulated in first instance formed part of the record reviewed by the Chamber. Lisa, S.A. had argued that dividends were never paid, that judicial actions in related proceedings interrupted prescription, and that the right to receive dividends as a shareholder is not subject to prescription.
As part of its evidentiary defense, Lisa, S.A. obtained judicial reports from multiple related proceedings: Expediente 01048-1999-09321 (Seventh Civil Court of First Instance); Expediente 01044-2012-00279 and Expediente 01163-2012-00178 (Thirteenth Civil Court of First Instance); Expediente 01045-2012-00210 and Expediente 01045-2012-00242 (First Civil Court of First Instance); and Expediente 01046-2009-00357 (Fifth Civil Court of First Instance). These reports were offered to demonstrate the existence of judicial actions that would have interrupted the prescription invoked by the plaintiff. Lisa, S.A. also submitted an economic study titled "Economic Calculation of the Real Value of Shares and Dividends Owed to Lisa, Sociedad Anónima," shareholder registry records, the protocolized articles of incorporation, and correspondence addressed to Administradora de Restaurantes, S.A.
The Third Chamber, applying the quantum devolutum tantum apellatum principle, limited its review to the grievances raised by the appellant.
The appellate court determined that the applicable normative framework is Guatemala's Commercial Code (Decree 2-70), which governs the rights and obligations arising from the private-law relationship between a commercial entity and its shareholders. Under Articles 15 and 105 of that Code, shareholder rights must be exercised in accordance with the Commercial Code and the articles of incorporation.
The Chamber concluded that the right to participate in profits and in the assets remaining upon liquidation is a minimum right inherent to shareholder status. This right entails the ability to receive approved distributions once they have been settled, and to receive a share of the assets upon liquidation. The fact that a shareholder has not received or collected dividends during the authorized period does not mean they prescribe; the shareholder may demand them at any time until the company's liquidation.
"el derecho que le asiste a la demanda de que le sean pagadas las utilidades autorizadas en cualquier momento y hasta la liquidación de la sociedad, la circunstancia o hecho que no haya recibido las utilidades en el periodo autorizado o no las haya cobrado no conlleva que estas le prescriban, pudiendo exigir las mismas en cualquier momento hasta la liquidación de la sociedad, siendo errada la pretensión de la apelante que se le aplique un plazo de prescripción del derecho que posee un accionista para cobrar sus utilidades" (Page 19-20)
The Chamber confirmed the first-instance judgment, which had reached the same conclusion through a complementary line of reasoning. The trial court had found that: the Commercial Code does not contemplate prescription for dividend payments; the shareholder-company relationship does not create a debtor-creditor dynamic subject to Civil Code prescription rules; the Commercial Code expressly permits distribution of accumulated profits from prior fiscal years (Articles 35 and 111); there was no evidence that the General Assembly had established a prescription period for dividends; and excluding a shareholder from profits would constitute a prohibited leonine pact under Article 34 of the Commercial Code.
Regarding Lisa, S.A.'s peremptory exceptions, the first-instance court rejected them as imprecise and internally contradictory, since they simultaneously alleged lack of legal prerequisites, interruption of prescription, and non-existence of prescription. However, the rejection of the exceptions was immaterial to the outcome, as the principal claim was likewise rejected on the merits. The appellant did not challenge the rejection of the exceptions, and the Chamber did not revisit this point.