Constitutional Court denies Pollo Rey's amparo, confirming Lisa's defense across all four levels of Guatemalan judiciary
Sep 27 2016
Constitutional Court
The Constitutional Court of Guatemala, in a ruling dated September 27, 2016, denied the amparo filed by Pollo Rey, S.A. against the cassation judgment of September 21, 2015, issued by the Supreme Court of Justice, Civil Chamber. The amparo was the final avenue of challenge available against the grant of the preliminary defense of failure to satisfy the condition to which the asserted right is subject, raised by Lisa, S.A. in the summary damages proceeding (Expediente 01043-2012-00238). With this ruling, Lisa, S.A.'s defense was confirmed across all four levels of the Guatemalan judiciary.
Pollo Rey, S.A. filed a summary damages proceeding against Lisa, S.A. before the Ninth Civil Court of First Instance of Guatemala City, claiming that Lisa, S.A. should be liable for damages caused by acts that led to its exclusion as a shareholder. Lisa, S.A. raised preliminary defenses, including failure to satisfy the condition to which the asserted right is subject, arguing that its opposition to the exclusion agreement was pending before the Second Civil Court of First Instance (Expediente 01047-2012-00112), which prevented the agreement from taking effect under Articles 227 and 228 of the Commercial Code.
The Ninth Civil Court granted this defense in its order of February 28, 2014. The Second Chamber of the Court of Appeals, Civil and Commercial Division, confirmed the ruling in its decision of December 18, 2014. The Supreme Court of Justice, Civil Chamber, dismissed the cassation appeal in its judgment of September 21, 2015. Pollo Rey, S.A. filed the present amparo on December 4, 2015, before the Constitutional Court.
Pollo Rey, S.A., through its judicial representative Alberto Antonio Morales Velasco, alleged violations of its rights to defense, due process, justice, property, and legal certainty. It argued that the Supreme Court merely discredited its cassation technique without engaging the substance of its claims.
On the violation-of-law sub-ground concerning Article 1648 of the Civil Code, Pollo Rey, S.A. argued that because the Court of Appeals correctly applied Articles 227 and 228 of the Commercial Code, there was no misapplied norm to identify, making the technical requirement impossible to satisfy. On the erroneous-interpretation sub-ground concerning Article 228 of the Commercial Code, it maintained that damages are autonomous and do not depend on the finality of the exclusion agreement, because the damages are caused regardless of whether the grounds for exclusion subsist.
Lisa, S.A. appeared as a third party with interest (tercera interesada) and argued that the cassation appeal contained evident technical deficiencies that the Supreme Court properly identified. On the first sub-ground, Pollo Rey, S.A. failed to identify which norm was misapplied. On the second, it reused the same arguments from the prior sub-ground when it should have identified the alleged error in the court's juridical-intellectual activity. These deficiencies could not be cured ex officio by the cassation tribunal, and no constitutional injury resulted.
The Ministerio Público concluded that the Supreme Court acted within its legal authority and in compliance with constitutional norms, and recommended denial of the amparo.
On the violation-of-law sub-ground. The Constitutional Court confirmed that Pollo Rey, S.A. failed to comply with the procedural requirements for invoking this sub-ground, specifically the failure to identify the norm misapplied as a consequence of the non-application of Article 1648 of the Civil Code. The Court held that this deficiency could not be remedied by the cassation tribunal and that its identification did not constitute an unconstitutional restriction on access to the remedy. Each cassation sub-ground carries specific procedural requirements that the petitioner must satisfy to enable the tribunal's review.
On the erroneous-interpretation sub-ground (Article 228 of the Commercial Code). The Constitutional Court agreed with the Supreme Court and the Court of Appeals that the interpretation of Article 228 was legally correct. The Court reasoned that the liability of an excluded shareholder for damages caused by acts motivating the exclusion cannot be asserted while those very acts, as embodied in the exclusion agreement, are being challenged in the pending opposition proceeding. Only when the agreement becomes final and takes effect can such liability be pursued.
"No puede hacerse valer la responsabilidad del socio excluido en cuanto a los daños y perjuicios causados por los actos que motivaron la exclusión si, precisamente, dichos actos o motivos que propiciaron la misma y que son los plasmados en el acuerdo de exclusión de socio, son los que se encuentran en discusión dentro del juicio de oposición del referido acuerdo" (Page 11)
The Court concluded that the Supreme Court's conduct was consistent with the authority conferred by Article 630 of the Civil and Commercial Procedure Code on the cassation tribunal.