Exp. 01044-2017-00185 · Ordinary Action for Extinctive Prescription
On May 6, 2020, the Eighth Civil Court of First Instance, complying with the Constitutional Court's amparo ruling, revoked the decree admitting the claim in the ordinary track and rejected the extinctive prescription action over dividends filed by Inversiones Empresariales, S.A.
Inversiones Empresariales, S.A. filed an ordinary civil action for extinctive prescription of the obligation to pay dividends against Lisa, S.A. before the Eighth Civil Court of First Instance of Guatemala. Lisa challenged the admission of the claim in the ordinary procedural track, arguing that the dispute must be heard through commercial summary proceedings under Article 1039 of the Commercial Code and the submission clause in the plaintiff's own articles of incorporation. After obtaining a favorable amparo ruling from the Constitutional Court, the trial court revoked the admission decree and rejected the lawsuit for improper procedural track. Lisa, S.A. prevailed, defeating Inversiones Empresariales' attempt to extinguish by prescription the obligation to pay dividends owed to Lisa.
Inversiones Empresariales, S.A. filed an ordinary claim for extinctive, negative, or liberatory prescription of the obligation to pay dividends against Lisa, S.A. The Eighth Civil Court of First Instance admitted the claim through the ordinary procedural track by decree of February 24, 2017.
Lisa filed a motion for revocation (recurso de revocatoria) arguing that the correct procedural track was the commercial summary proceeding, on two grounds: Article 1039 of the Commercial Code, which prescribes that actions arising from the application of that statute must be processed through summary proceedings, and Clause Twenty-Five of the articles of incorporation of the plaintiff itself (public deed number sixteen, dated March 6, 1984), which contains a submission clause requiring disputes between the company and its shareholders to be resolved through summary proceedings.
The court denied the revocation on December 6, 2018 without legal basis, merely stating that the claim should proceed through the ordinary track. Lisa filed an amparo before the Second Chamber of the Court of Appeals for Civil and Commercial Matters, sitting as an amparo tribunal. On appeal, the Constitutional Court ruled on October 17, 2019, declaring Lisa's appeal well-founded, granting the amparo, and ordering the trial court to issue a new resolution consistent with its findings.
The Constitutional Court determined that the extinctive prescription claim over dividends is mercantile in nature, as it involves mercantile legal entities in a dispute centered on dividend payments to shareholders. It concluded that the judge, by denying the revocation without any legal basis, violated Lisa's right to effective judicial protection (tutela judicial efectiva).
Complying with the ejecutoria received on May 5, 2020, the court declared the motion for revocation well-founded, revoked the February 24, 2017 decree admitting the claim in the ordinary track, and rejected the lawsuit filed by Inversiones Empresariales.
The extinctive prescription claim over dividends was rejected for improper procedural track.
The ruling foreclosed Inversiones Empresariales' attempt to extinguish by prescription the obligation to pay dividends owed to Lisa through a proceeding that violated both mercantile law and the submission clause in the plaintiff's own articles of incorporation. As part of the Avícola Villalobos Group, Inversiones Empresariales sought through prescription to release the company from its obligation to pay dividends owed to Lisa as a 25% shareholder, dividends that the group itself has prevented Lisa from collecting through embargoes and procedural maneuvers across multiple related proceedings.
| Date | Document | Issued by |
|---|---|---|
| May 6 2020 | Order | 8th Civil Court |
The proceeding was resolved in favor of Lisa, S.A. with the rejection of the ordinary claim. Inversiones Empresariales would need to refile its extinctive prescription claim through commercial summary proceedings.