Dismisses dividend prescription claim for failure to prove exigibility
Jul 11 2025
8th Civil Court
The Eighth Multi-Judge Civil Court of First Instance, Guatemala dismissed Villamorey, S.A.'s ordinary action for extinctive prescription against Lisa, S.A. regarding dividends decreed at the general shareholders' assemblies of April 27, 2010 and July 5, 2011. The judgment represents a substantive victory for Lisa: although the court also denied Lisa's four peremptory exceptions for insufficient evidence, the net result is that Villamorey's obligation to pay the decreed dividends was not extinguished and remains fully in force.
Villamorey, S.A., a Panamanian entity within the Avícola Villalobos Group, filed an ordinary action for extinctive prescription on May 10, 2017. Lisa, S.A., a shareholder of Villamorey, answered the complaint in the negative on July 9, 2021, through its special judicial representative, attorney Rossana Mishelle Ramírez Paredes. The evidentiary period opened on March 22, 2023, and the hearing was held on July 12, 2024. Judgment was rendered on July 11, 2025, more than eight years after the complaint was filed.
The dispute arises within a broader context of prolonged litigation between Lisa and the Avícola Villalobos Group entities. Since 1999, multiple Group entities have obtained embargo orders over Lisa's shares, dividends, and participation rights across all companies in the conglomerate, including Villamorey. Lisa argued that these embargoes, sought and executed by the Group entities themselves, materially prevented collection of the very dividends whose prescription was now being sought.
Villamorey sought a judicial declaration that its obligation to pay Lisa the dividends decreed at the ordinary annual general shareholders' assemblies of April 27, 2010 and July 5, 2011 had been extinguished by the five-year prescriptive period under Articles 1319, 1501, and 1508 of the Civil Code. Villamorey argued that the dividends became available to shareholders the day after each assembly, that Lisa failed to demand payment, and that the obligation to pay dividends is not governed by any special provision, making the general five-year period of Article 1508 applicable.
Lisa answered the complaint in the negative and filed four peremptory exceptions:
Lack of truthfulness in the plaintiff's allegations. Lisa demonstrated that the certificate issued by board secretary Ana Isabel Garrido Prieto, stating that Villamorey had received no payment demand from Lisa, was false. At the Villamorey shareholders' assembly held in Panama on November 22, 2016, Lisa demanded immediate payment of Q.99,902,815.00 in dividends per the financial statements, minus amounts embargoed in Panama ($884,718.00). Garrido Prieto herself acknowledged the existence of Guatemalan court embargoes preventing payment, without raising any prescription defense.
Lack of legal prerequisites for prescription. Lisa argued that prescription was interrupted under Article 1506 of the Civil Code by precautionary measures executed in multiple proceedings brought by Avícola Villalobos Group entities. Lisa detailed the embargoes decreed in the ordinary damages actions filed by Reproductores Avícolas, S.A. (Case No. 01044-2012-00279), Compañía Alimenticia de Centroamérica, S.A. (Case No. 01045-2012-00210), Industria Forrajera de Mazatenango, S.A. (Case No. 01045-2012-00242), Importadora de Alimentos de Guatemala, S.A. (Case No. 01044-2012-00229), and Agroprocesos Avícolas, S.A. (Case No. 01045-2012-00179). Each of these proceedings obtained embargo orders over Lisa's dividends, shares, and participation rights in all Group entities, including Villamorey. Lisa also identified embargoes decreed in the proceedings brought by Avícola Villalobos, S.A. and Cerro Colorado, S.A. (Case No. C2-2000-4199, before the Tenth Civil Court of First Instance) and in the precautionary measures of Case No. 01163-2012-00178.
Interruption by judicial actions. Lisa advanced substantially similar arguments, emphasizing that prescription cannot run when the debtor itself, or its affiliated entities, obtained precautionary measures preventing collection.
Non-existence of the extinctive prescription. Lisa argued that decreed dividends constitute a shareholder's property right, imprescriptible under Article 39 of the Constitution, and that Villamorey's action constituted a fraud on the law under Article 4 of the Judiciary Act.
Lisa presented November 2018 letters signed by vice-president of the board of directors Gabriel Arturo Muadi on behalf of multiple Group entities, refusing dividend payment on the grounds that the dividends were under embargo. Lisa characterized the contradiction as a deliberate pattern: the same entities that obtained embargoes to prevent payment now sought to extinguish the obligation through prescription arising from that very non-payment. Lisa also noted that Villamorey filed a jactancia (vexatious litigation) action against Lisa (Case No. 01044-2021-00056) for the sole fact of having demanded dividend payment, evidencing the systematic use of judicial proceedings to suppress the exercise of shareholder rights.
On the prescription claim. The court applied Article 1508 of the Civil Code, which provides that extinctive prescription runs for five years "from the time the obligation could be demanded." The court found that exigibility was not clearly established in this case. Villamorey failed to provide adequate evidence establishing when the dividends became effectively demandable by Lisa.
The court analyzed each of Villamorey's evidentiary submissions individually. The board secretary's certificate proved the assemblies occurred and that distribution of profits was approved, but did not indicate where the meetings were held or in whose favor the distribution was to be made. The accounting certification by expert Eduardo Antonio Arenas Corominal proved the existence of accounts payable arising from the distribution agreements, but did not specify that the payable was owed to Lisa. The certificate stating that Villamorey received no payment demand from Lisa lacked sufficient legal force, as the court could not verify the issuer's authority. The shareholder registry certificate confirmed Lisa's status as a registered holder of nominative shares. The examination of Lisa as a party produced no confession supporting Villamorey's claims.
"La noción de exigibilidad de la obligación a la que alude el artículo 1508 del Código Civil, norma en la cual la parte actora fundamenta su pretensión (…) no está claramente definida en el caso de estudio toda vez que no existe ningún medio de prueba idóneo que permita establecer lo regulado en la norma antes indicada." (Page 69)
On Lisa's peremptory exceptions. The court denied all four exceptions for insufficient evidence. Lisa offered reports from four courts (Thirteenth, Eighth, Ninth, and Tenth Multi-Judge Civil Courts of First Instance) and the Mercantile Registry. The court reports only established the existence of proceedings against Lisa, without proving the substantive matters Lisa alleged. The Mercantile Registry report revealed that neither Villamorey nor Lisa appeared in the Guatemalan registry. The examination of Villamorey as a party produced no useful confession. The court did not reach Lisa's arguments regarding fraud on the law, abuse of rights, or the imprescriptible nature of dividends as property, holding instead that the defense failed to provide adequate evidence beyond its assertions.
On costs. With neither party prevailing, the court determined that costs were not warranted under Article 573 of the Code of Civil and Commercial Procedure.
Villamorey, S.A. appealed the judgment. Lisa, S.A. defended the ruling in its brief of October 17, 2025, citing territorial incompetence and the existence of embargoes. The Fifth Civil and Commercial Court of Appeals, by resolution of November 5, 2025, denied Villamorey's appeal, confirmed the first-instance judgment in full, and imposed costs on the appellant.