Sustains Lisa's defense that Pollo Rey's exclusion-based damages claim is premature
Feb 28 2014
9th Civil Court
The Ninth Civil Court of First Instance, in an order dated February 28, 2014, resolved the preliminary defenses filed by Lisa, S.A. in the summary damages proceeding brought by Pollo Rey, S.A. The court sustained the defense of failure to satisfy the condition to which the asserted right is subject, finding that the damages claim was premature while Lisa's exclusion as shareholder remained non-final. The ruling halted the proceeding before it could advance to the merits.
Pollo Rey, S.A. filed a summary damages proceeding against Lisa, S.A., 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 Lisa's exclusion as shareholder and caused damages to Pollo Rey. The complaint was admitted for processing on March 29, 2012. Pollo Rey's factual predicate was the exclusion resolution adopted at the Annual Ordinary General Shareholders' Assembly on April 6, 2011.
Lisa, S.A., through its judicial representative Licenciado Tito Enoc Marroquín Cabrera, raised six preliminary defenses: (a) incompetence (resolved separately by the Fifth Chamber of the Court of Appeals, which denied it), (b) failure to satisfy the condition to which the asserted right is subject, (c) defective complaint, (d) lack of standing of the defendant, (e) prescription, and (f) lapse (caducidad).
Pollo Rey argued that the exclusion resolution adopted by the shareholders' assembly entitled it to claim damages and losses caused by Lisa's acts. Regarding prescription, Pollo Rey contended that the statute of limitations was interrupted by the execution of a precautionary measure on April 25, 2012, within the one-year period established by Article 1673 of the Civil Code. On lapse, Pollo Rey maintained that the right to adopt the exclusion agreement was not at issue in this proceeding.
Failure to satisfy the condition. Lisa argued that Pollo Rey sought damages derived from an exclusion that was not yet final. Lisa had filed a formal opposition to the exclusion agreement before the Second Civil Court of First Instance (Expediente 01047-2011-00112), as permitted by Article 227 of the Commercial Code. While that opposition remained pending, the exclusion agreement had no legal effect, making the damages claim premature. Lisa maintained that it was Pollo Rey itself that would ultimately owe damages for the illegal exclusion.
Defective complaint. Lisa contended that the plaintiff failed to attach essential documents supporting its claims, did not specify the allegedly tortious acts with precision, and did not identify the purported author of the testimonial declaration that allegedly caused the harm.
Lack of standing. Lisa argued that if the basis of the claim was a false testimonial declaration, the action should have been directed against the person who made that declaration, not against Lisa.
Prescription and lapse. Lisa invoked Article 1673 of the Civil Code, which establishes a one-year statute of limitations for damages claims running from the date the damage was caused. On lapse, Lisa argued that the facts underlying the exclusion were known to Pollo Rey more than three months before the exclusion resolution was adopted, exceeding the period established in Article 230 of the Commercial Code.
Defective complaint. The court found that the complaint satisfied the formal and substantive requirements of Articles 61, 106, and 107 of the Civil and Commercial Procedure Code. The defense was denied.
Lack of standing. The court found a sufficient legal nexus between the plaintiff and defendant for Lisa to appear with standing, particularly given the arguments surrounding the exclusion agreement. The defense was denied.
Prescription. The court reasoned that because the damages claim was premature due to the unfulfilled condition, the prescriptive period had not begun to run. If the exclusion was not final, prescription could not operate. The defense was denied.
Lapse. The court noted that Lisa's arguments addressed Pollo Rey's right to adopt the exclusion agreement, which was not the subject matter of this damages proceeding. The defense was denied.
Failure to satisfy the condition. The court sustained this defense. Under Article 227 of the Commercial Code, the exclusion agreement takes effect thirty days after notification to the excluded shareholder. Lisa's opposition suspended that period. The opposition proceeding (Expediente 01047-2011-00112) was the proper forum to determine the validity of the exclusion, and its pendency established that the legal condition necessary to pursue damages had not been fulfilled.
Pollo Rey, S.A. appealed the ruling. The appellate ruling of December 18, 2014 by the Second Chamber of the Court of Appeals confirmed the first-instance decision in its entirety. Subsequently, the cassation judgment of September 21, 2015 by the Supreme Court dismissed Pollo Rey's cassation appeal. Finally, the amparo ruling of September 27, 2016 by the Constitutional Court denied Pollo Rey's constitutional challenge, definitively closing all avenues of review. Lisa, S.A. prevailed at all four levels of the Guatemalan judiciary.