Los Abetos Summary Damages Claim Against Lisa Dismissed on Preliminary Exceptions

I. Summary Proceeding and First-Instance Ruling

Order

Los Abetos, S.A. filed a commercial summary proceeding against Lisa, S.A. claiming damages allegedly caused by fraudulent acts that motivated Lisa's exclusion as a shareholder, including the use of a paid testimonial declaration as the basis for multiple lawsuits. Lisa answered and filed five preliminary exceptions: failure to fulfill the condition precedent, defective complaint, lack of standing of the defendant, prescription, and lapse (caducidad).

The Ninth Civil Court of First Instance denied the exceptions for defective complaint, lack of standing, prescription, and lapse, but sustained the exception for failure to fulfill the condition precedent. The court determined that, under Articles 227 and 228 of the Commercial Code, the right to claim damages arising from a shareholder's exclusion presupposes that the exclusion agreement has taken effect. Lisa established that it had filed an opposition to its exclusion before the Second Civil Court of First Instance (Expediente 01047-2011-00108), which suspended the period for the agreement to take effect. The claim was premature while the legality of the exclusion remained unresolved. Los Abetos was ordered to pay costs.

This outcome shielded Lisa from a damages claim that lacked a procedural foundation while its exclusion remained under judicial challenge, confirming that the legal condition required to pursue the indemnification action had not been met.

II. Appeal

Appeal Ruling

Both parties appealed. Lisa challenged the denial of its exceptions for defective complaint, lack of standing, prescription, and lapse. Los Abetos contested the granting of the non-fulfillment-of-condition exception, arguing that the damages derived from fraudulent acts independent of the exclusion and that the opposition proceeding did not constitute a suspensive condition on the asserted right. Los Abetos also challenged the costs award.

The Second Civil and Commercial Court of Appeals confirmed the appealed order on all substantive grounds. The court upheld the finding that the claim was premature under Article 228 of the Commercial Code, as Lisa's exclusion as a shareholder had not become final. On Lisa's other exceptions, the court found that the complaint met legal requirements (defective complaint), that sufficient procedural connection existed between the parties (lack of standing), and that the prescription and lapse arguments constituted substantive matters for resolution at trial. The sole modification was on costs: the court exempted both parties, finding partial reciprocal success under Article 574 of the Civil and Commercial Procedural Code.

The appellate confirmation consolidated Lisa's position, leaving firm the dismissal of Los Abetos' damages claim while the opposition to the shareholder exclusion remained unresolved.