Pollo Rey Summary Damages Suit Against Lisa Rejected at First Instance

I. Preliminary Defenses at First Instance

Order

Pollo Rey, S.A. filed a summary damages proceeding against Lisa, S.A. on March 27, 2012, alleging that certain acts by 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, preventing the agreement from taking effect. Under Article 228, the right to claim damages depends on the exclusion having taken effect, rendering the damages claim premature.

The Ninth Civil Court sustained the defense of failure to satisfy the condition, halting the proceeding before it could advance to the merits. The remaining four defenses (defective complaint, lack of standing, prescription, and lapse) were declared without place. Pollo Rey was condemned to costs on the incidental proceeding.

Practical effect: The ruling established that a damages claim under Article 228 of the Commercial Code cannot proceed while the underlying exclusion agreement remains under judicial challenge, vindicating Lisa, S.A.'s position.

II. Appellate Confirmation

Appeal Ruling

Pollo Rey, S.A. appealed the grant of the condition defense. Lisa, S.A. cross-appealed on the four denied defenses (defective complaint, lack of standing, prescription, and lapse).

The Second Chamber of the Court of Appeals, Civil and Commercial Division, conducted an independent analysis of each defense. On the defective complaint, it verified that the complaint satisfied all formal requirements of Articles 50, 61, 63, 79, 106, 107, and 108 of the Civil and Commercial Procedure Code. On lack of standing, it found sufficient procedural nexus between the parties given the exclusion resolution and the alleged acts. On prescription, it determined that under Article 1509 of the Civil Code, the statute of limitations in conditional obligations runs only from the date the condition is fulfilled, which had not occurred. Lapse was likewise rejected as pertaining to the right to adopt the exclusion agreement, a matter for the separate opposition proceeding.

On the condition defense, the Chamber conducted an independent legal analysis of Article 228 of the Commercial Code in conjunction with Article 227 and Civil Code provisions on conditional obligations. It concluded that the right to claim damages constitutes a conditional obligation whose exercise depends on the exclusion agreement having taken effect, which had not occurred while Lisa's opposition remained pending in Expediente 01047-2012-00112.

The Chamber confirmed the first-instance ruling in its entirety, declaring both the appeal and the cross-appeal without place.

Practical effect: The appellate confirmation reinforced the legal framework that an exclusion-based damages claim cannot be pursued while the exclusion itself remains contested, providing Lisa, S.A. with a second judicial endorsement of its position.

III. Cassation Before the Supreme Court

Cassation Ruling

Pollo Rey, S.A. filed a cassation appeal on substantive grounds, raising two sub-grounds. The first, violation of law by non-application of Article 1648 of the Civil Code, argued that this provision establishes only two conditions for the viability of a damages claim (the continued iuris tantum presumption of fault and proof of the damage suffered) and that the appellate court added a third, non-statutory condition. The second, erroneous interpretation of Article 228 of the Commercial Code, contended that the appellate court attributed to the provision a meaning it does not possess by conditioning the damages claim on the finality of the exclusion agreement.

The Civil Chamber of the Supreme Court examined both sub-grounds. On violation of law, it found a defect of form: when invoking this sub-ground, the cassation petitioner must identify the norm that was misapplied in place of the omitted one, which Pollo Rey failed to do. Given the extraordinarily formalistic nature of the cassation remedy, the Chamber could not supply this omission ex officio. On erroneous interpretation, the Chamber determined that the appellate court's interpretation was correct: damages under Article 228 require a causal link between the shareholder's acts and the exclusion, and the exclusion must have taken effect for that causal chain to be complete.

The Supreme Court dismissed the cassation appeal in its entirety. Pollo Rey was condemned to costs and a fine of Q500.00.

Practical effect: The Supreme Court's ruling established, at the highest level of ordinary jurisdiction, that the appellate court's interpretation of Article 228 of the Commercial Code was legally sound. The doctrinal summary appended to the judgment states the rule: an excluded shareholder's liability for damages arises only when the exclusion agreement is final.

IV. Constitutional Challenge: Amparo

Amparo Ruling

Pollo Rey, S.A. filed an amparo action directly before the Constitutional Court on December 4, 2015, challenging the cassation judgment. It alleged violations of its rights to defense, due process, justice, property, and legal certainty, 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 and argued that the cassation appeal contained evident technical deficiencies that the Supreme Court properly identified. The Ministerio Público concluded that the Supreme Court acted within its legal authority and recommended denial of the amparo.

The Constitutional Court examined both sub-grounds independently. On violation of law, it confirmed that Pollo Rey did not comply with the procedural requirements for invoking this sub-ground, specifically the failure to identify the norm misapplied in place of Article 1648. On erroneous interpretation of Article 228, it agreed with the Supreme Court that the appellate court's interpretation was correct: the liability of an excluded shareholder for damages cannot be asserted while the very acts embodied in the exclusion agreement are being challenged in the pending opposition proceeding.

The Constitutional Court denied the amparo in its entirety. Pollo Rey was condemned to costs, and its sponsoring attorney, Alberto Antonio Morales Velasco, was fined Q1,000.00.

Practical effect: This ruling exhausted Pollo Rey's final avenue of challenge. The Constitutional Court's endorsement of the lower courts' interpretation of Article 228 of the Commercial Code gives the rule constitutional-level validation: an exclusion-based damages claim under Guatemalan commercial law is not actionable while the exclusion agreement is being contested. Lisa, S.A.'s defense was sustained at every level of the Guatemalan judiciary, with Pollo Rey condemned to costs and fines at each stage.