Feb 20 2023
Supreme Court
Avícola 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 in general terms that litigation and publicity attributed to Lisa had undermined its corporate assets.
The Eighth Civil Court of First Instance dismissed the claim in <doc id="gua-01044-2012-00229-2022-01-21-a" />, issued on January 21, 2022, sustaining the peremptory exception of lack of indispensable procedural prerequisites for the damages claim and ordering the plaintiff to pay costs.
The Fifth Civil and Commercial Court of Appeals, in <doc id="gua-01044-2012-00229-2022-06-06-a" /> of June 6, 2022, partially granted the appeal: it struck down the procedural exception, holding that an award of damages is not exclusively contingent upon shareholder exclusion. It nonetheless confirmed the rejection of the claim because the plaintiff failed to prove the existence of any harm or to quantify the alleged damages.
Avícola Las Margaritas invoked a single ground of substance: 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, recording that expenses and provisions arising from Lisa, S.A.'s actions totaled Q2,673,294.05 as of December 31, 2011. The appellant argued the document proved that its corporate assets had been undermined and quantified the damages, and that omitting it deprived the court of applying the mandatory evidentiary weight (prueba tasada) of Article 186 of the same Code.
Canadian court proceedings. A simple photocopy of notarial deed number 13, authorized on June 6, 2011 by Notary Ana Lucrecia Palomo Marroquín de Ortiz, protocolizing case file CV-11-9062-00CL of the Ontario Superior Court of Justice, Canada. The appellant argued, in general terms, that this document revealed a corporate and financing structure of which Lisa, S.A. forms part and that funded litigation and adverse publicity against the Avícola Group, and that it likewise carried mandatory evidentiary weight under Article 186.
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 only when the omission is significant enough to alter the outcome.
On the accounting certification. The Chamber confirmed that the Court of Appeals did not address the document. Examining its content, however, 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, without demonstrating that those amounts had been effectively paid by the appellant as a consequence of the alleged damages. The omission therefore did not affect the outcome.
On the Canadian court proceedings. The Chamber likewise confirmed the omission, but concluded that the document only evidenced the protocolization of a foreign instrument containing a case pending in Ontario, Canada. It was not useful to prove the damages the appellant sought to establish, as it did not by itself demonstrate any harm 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.