Appeals court confirms Pollo Rey damages claim premature while exclusion opposition pending
Dec 18 2014
Court of Appeals
The Second Chamber of the Court of Appeals, Civil and Commercial Division upheld in full the order of February 28, 2014, issued by the Ninth Civil Court of First Instance, which granted Lisa, S.A.'s preliminary defense of failure to satisfy the condition to which the asserted right is subject, dismissing Pollo Rey, S.A.'s damages claim as premature. The Chamber held that the right to claim damages under Article 228 of the Commercial Code constitutes a conditional obligation whose exercise depends on the exclusion agreement having taken effect, which had not occurred because Lisa's opposition remained pending before the Second Civil Court of First Instance (Expediente 01047-2012-00112).
Pollo Rey, S.A. filed a summary proceeding for damages against Lisa, S.A. on March 27, 2012, alleging that acts attributable to Lisa had motivated the exclusion agreement adopted at Pollo Rey's annual general shareholders' assembly on April 6, 2011. Lisa raised six preliminary defenses. The incompetence defense was resolved separately by the Fifth Chamber. The first-instance order of February 28, 2014 granted the condition defense and denied the remaining four (defective complaint, lack of standing, prescription, and lapse), condemning Pollo Rey to costs. Pollo Rey appealed the grant of the condition defense, and Lisa cross-appealed on the four denied exceptions.
Pollo Rey argued that Article 228 of the Commercial Code does not condition the right to claim damages on the exclusion agreement being final. It maintained that the damages are based on the acts that provoked the exclusion, not the exclusion itself, and that failing to file suit would expose the claim to prescription under Article 1673 of the Civil Code.
Lisa cross-appealed the denial of the four remaining exceptions. On the defective complaint, Lisa argued that Pollo Rey failed to attach the essential documents supporting its claim and did not specify the facts with sufficient clarity. On lack of standing, Lisa contended that if the foundation of the complaint was a paid testimonial declaration, the action should have been directed against the declarant. On prescription and lapse, Lisa argued that the acts motivating the exclusion predated the agreement by more than one year, extinguishing the right to claim damages, and that the right to adopt the exclusion agreement had lapsed under Article 230 of the Commercial Code.
Defective complaint. The Chamber 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. Pollo Rey's failure to describe the alleged damages in granular detail did not render the complaint defective, as the evidentiary phase would be the appropriate procedural moment to prove the constitutive facts. The denial was confirmed.
Lack of standing. The Chamber determined that the notarial act transcribing the shareholders' assembly resolution of April 6, 2011, and the complaint in the exclusion-opposition proceeding (Expediente 01047-2012-00112), established a sufficient procedural relationship between the parties. Lisa's argument regarding the testimonial declaration did not negate its passive standing, as this was a controverted fact to be assessed on the merits. The denial was confirmed.
Prescription and lapse. The Chamber held that the prescription defense was premature, applying Article 1509 of the Civil Code: in conditional obligations, the prescriptive period runs only from the date the condition is fulfilled. Because the condition (finality of the exclusion agreement) had not occurred, the prescriptive period had not begun. Lapse was likewise rejected as pertaining to the right to adopt the exclusion agreement, a matter outside the scope of this damages proceeding. Both denials were confirmed.
Failure to satisfy condition. The Chamber analyzed Article 228 of the Commercial Code in conjunction with Article 227 and the Civil Code provisions on conditional obligations. It determined that the right to claim damages from an excluded shareholder depends on the exclusion agreement having taken effect. Under Article 227, the agreement takes effect thirty days after notification to the excluded shareholder, provided the shareholder does not oppose it. Because Lisa's opposition was pending before the Second Civil Court of First Instance (Expediente 01047-2012-00112), the exclusion was not final and liability for damages could not be asserted. The grant was confirmed.
"Circunstancia que impide que pueda hacerse valer la responsabilidad del socio excluido, porque aún no se ha determinado la procedencia de esa exclusión ni se encuentra firme el acuerdo." (Page 11)
Pollo Rey, S.A. filed a cassation appeal on substantive grounds against this ruling, invoking violation of law by non-application of Article 1648 of the Civil Code and erroneous interpretation of Article 228 of the Commercial Code. The Supreme Court, Civil Chamber, dismissed the cassation appeal on September 21, 2015, confirming the Chamber's interpretation of Article 228 and condemning Pollo Rey to costs and a fine of Q500.00. Pollo Rey subsequently filed an amparo before the Constitutional Court, which was denied on September 27, 2016, definitively closing the case.