Civil Chamber dismisses Las Margaritas cassation, ruling omitted documents failed to prove damages
Feb 20 2023
Supreme Court
The Supreme Court of Justice, Civil Chamber, dismissed the cassation appeal filed by Avicola Las Margaritas, S.A. against the ruling issued by the Fifth Civil and Commercial Court of Appeals on June 6, 2022, which had upheld the rejection of an ordinary damages and moral damages claim against Lisa, S.A. The Chamber concluded that the two documents whose omission was alleged were insufficient to alter the outcome, because neither proved that the claimed damages had been effectively caused or quantified. This ruling made the dismissal of the damages claim final across all instances.
Avicola Las Margaritas, S.A. (formerly Importadora de Alimentos de Guatemala, S.A.) filed an ordinary lawsuit for damages and moral damages against Lisa, S.A., alleging that lawsuits filed by Lisa and a purported smear campaign had undermined its corporate assets.
The Eighth Civil Court of First Instance dismissed the claim in its ruling of January 21, 2022, upholding the peremptory exception of lack of indispensable procedural prerequisites for the damages claim, and ordered the plaintiff to pay costs.
The Fifth Civil and Commercial Court of Appeals, in its ruling of June 6, 2022, partially granted the appeal: it struck down the procedural exception, holding that damages are not exclusively contingent upon shareholder exclusion. However, it confirmed the rejection of the claim because the plaintiff failed to prove the existence of any harm or quantify the alleged damages.
Avicola Las Margaritas invoked a single ground: error of fact in the evaluation of evidence by omission, under Article 621(2) of the Code of Civil and Commercial Procedure. It argued that the Court of Appeals failed to analyze two documents whose content would have changed the outcome:
Accounting certification. A certification issued by certified public accountant Milton Daniel Max Moya on March 2, 2012, stating that expenses and provisions arising from Lisa, S.A.'s actions totaled Q2,673,294.05 as of December 31, 2011. The appellant argued this document proved that its corporate assets had been undermined and quantified the damages. It claimed the Court of Appeals, by omitting the document, deprived itself of applying the mandatory evidentiary weight (prueba tasada) under Article 186 of the Code of Civil and Commercial Procedure.
Notarized Canadian court proceedings. A simple photocopy of the notarial deed number 13, authorized on June 6, 2011, by Notary Ana Lucrecia Palomo Marroquin de Ortiz, containing the protocolization of case file CV-11-9062-00CL from the Ontario Superior Court of Justice, Canada. This case was filed by Margarita Gutierrez Strauss de Castillo against Juan Arturo Gutierrez Gutierrez, Juan Guillermo Gutierrez Strauss, and several entities. The appellant argued this document revealed the corporate structure of which Lisa, S.A. forms part, and the payments channeled through Xela Enterprises, Ltd. to finance lawsuits, media campaigns, and political activities against the Avicola Group.
Lisa, S.A. did not file a brief on the day of the hearing.
The Civil Chamber restated the applicable standard: error of fact by omission arises when the appellate court fails to evaluate evidence offered by the parties in deciding the merits, and the error is of such significance that it would alter the outcome.
On the accounting certification. The Chamber confirmed that the Court of Appeals did not address this document. However, upon examining its content, it found that the certification merely recorded the existence of expenses and provisions arising from Lisa, S.A.'s actions totaling Q2,673,294.05, but did not demonstrate that those expenditures were effectively paid by the appellant as a consequence of the alleged damages. The Chamber held that, while the Court of Appeals did not evaluate the document, the omission did not affect the outcome.
On the Canadian court proceedings. The Chamber likewise confirmed the omission. Nevertheless, it concluded that the document only proved the protocolization of a foreign document containing a pending case litigated in Ontario, Canada. The document was not useful to prove the damages the appellant sought to establish, as it did not by itself demonstrate the existence of damages caused by Lisa, S.A.
"los documentos denunciados a pesar de haberse omitido, no inciden en el resultado del fallo, pues no son útiles para resolver la controversia; derivado de lo expuesto, el submotivo de error de hecho en la apreciación de la prueba por omisión deviene improcedente y como consecuencia el recurso de casación debe desestimarse" (Page 16)
The ruling does not identify the signing justices by name. The decision states that the Civil Chamber was constituted pursuant to item two of minute 46-2022 of the Supreme Court of Justice.