Exp. 01043-2012-00238

I. Preliminary Defenses at First Instance

Pollo Rey, S.A. filed a summary damages proceeding against Lisa, S.A. on March 27, 2012 before the Ninth Civil Court of First Instance in Guatemala City, alleging that certain acts attributable to Lisa, including the purported procurement of a false testimonial declaration, the filing of lawsuits abroad, and a defamation campaign, had motivated the exclusion agreement adopted at the Annual Ordinary General Shareholders' Assembly on April 6, 2011 and caused damages to Pollo Rey. Lisa, S.A., through its judicial representative Licenciado Tito Enoc Marroquín Cabrera, raised six preliminary defenses: incompetence (resolved separately by the Fifth Chamber), failure to satisfy the condition to which the asserted right is subject, defective complaint, lack of standing of the defendant, prescription, and lapse (caducidad). The central defense was the unfulfilled condition: Lisa had filed a formal opposition to the exclusion agreement before the Second Civil Court of First Instance (Expediente 01047-2011-00112) under Article 227 of the Commercial Code, so the agreement could not take effect, and under Article 228 the damages claim was premature.

Through its <doc id="gua-01043-2012-00238-2014-02-28-a" /> of February 28, 2014, the Ninth Civil Court sustained the defense of failure to satisfy the condition, halting the proceeding before it could advance to the merits, and declared the remaining four defenses (defective complaint, lack of standing, prescription, and lapse) without place, condemning Pollo Rey to costs. The ruling fixed the principle that would govern the entire litigation: a damages claim under Article 228 of the Commercial Code cannot proceed while the underlying exclusion agreement remains under judicial challenge.

II. Appellate Confirmation

Pollo Rey appealed the grant of the condition defense, and Lisa cross-appealed on the four denied defenses. In its <doc id="gua-01043-2012-00238-2014-12-18-a" /> of December 18, 2014, the Second Chamber of the Court of Appeals, Civil and Commercial Division, analyzed each defense independently: it verified that the complaint satisfied the formal requirements of Articles 50, 61, 63, 79, 106, 107, and 108 of the Civil and Commercial Procedure Code; found sufficient procedural nexus between the parties given the exclusion resolution and the alleged acts; determined that, under Article 1509 of the Civil Code, the limitations period in conditional obligations runs only from the fulfillment of the condition, which had not occurred; and rejected lapse as pertaining to the right to adopt the exclusion agreement, a matter for the separate opposition proceeding. On the condition, it concluded that the right to claim damages constitutes a conditional obligation whose exercise depends on the exclusion having taken effect. The Chamber confirmed the first-instance ruling in its entirety, declaring both the appeal and the cross-appeal without place, and gave Lisa a second judicial endorsement of its position.

III. Cassation Before the Supreme Court

Pollo Rey filed a cassation appeal on substantive grounds with two sub-grounds: violation of law by non-application of Article 1648 of the Civil Code, which in its view establishes only two conditions for a viable damages claim (the surviving iuris tantum presumption of fault and proof of the damage) and to which the appellate court purportedly added a third, non-statutory condition; and erroneous interpretation of Article 228 of the Commercial Code, for conditioning the claim on the finality of the exclusion agreement. In its <doc id="gua-01043-2012-00238-2015-09-21-a" /> of September 21, 2015, the Civil Chamber of the Supreme Court found a defect of form in the first sub-ground, because the petitioner failed to identify the norm misapplied in place of the omitted one, a deficiency that the formalistic nature of cassation barred it from supplying ex officio; and on the second, it confirmed that the appellate court's interpretation was correct, since damages under Article 228 require a causal link between the shareholder's acts and the exclusion, which must have taken effect. The Supreme Court dismissed the appeal in its entirety and condemned Pollo Rey to costs and a fine of Q500.00. The doctrinal summary appended to the judgment stated the rule at the highest level of ordinary jurisdiction: an excluded shareholder's liability for damages arises only when the exclusion agreement is final.

IV. Constitutional Challenge: Amparo

Pollo Rey filed an amparo action directly before the Constitutional Court on December 4, 2015 against the cassation judgment, alleging violations of its rights to defense, due process, justice, property, and legal certainty, and arguing that the Supreme Court merely discredited its cassation technique without engaging the substance of its claims. Lisa, S.A. appeared as a third party with interest in defense of the judgment, and the Ministerio Público concluded that the Supreme Court acted within its authority and recommended denial of the amparo. In its <doc id="gua-01043-2012-00238-2016-09-27-a" /> of September 27, 2016, the Constitutional Court examined both sub-grounds independently, confirmed that Pollo Rey had not met the requirements for invoking violation of law by failing to identify the norm misapplied in place of Article 1648, and agreed that the interpretation of Article 228 was correct: an excluded shareholder's liability for damages cannot be asserted while the very acts embodied in the exclusion agreement are being challenged in the pending opposition proceeding. The Court denied the amparo in its entirety and condemned Pollo Rey to costs, fining its sponsoring attorney, Alberto Antonio Morales Velasco, Q1,000.00. This exhausted Pollo Rey's final avenue of challenge: the interpretation of Article 228 was validated at constitutional level, and Lisa, S.A.'s defense was sustained at all four levels of the Guatemalan judiciary, with Pollo Rey condemned to costs and fines at each stage.