Lisa defends judgment dismissing dividend prescription citing territorial incompetence and active embargoes
Oct 17 2025
Lisa, S.A.
Lisa, S.A., through its attorney Rossana Mishelle Ramírez Paredes, files its appeal hearing brief on October 17, 2025 before the Fifth Civil and Commercial Court of Appeals, opposing the appeal filed by Villamorey, S.A. against the July 11, 2025 judgment of the Eighth Multi-Judge First Instance Civil Court of Guatemala, which dismissed Villamorey's extinctive prescription claim over Lisa's dividends. The brief articulates three lines of defense: territorial incompetence of Guatemalan courts, the legal impossibility of prescription given existing embargo orders over the dividends, and the absence of exigibility because the amount and payment conditions were never determined.
Villamorey, S.A. filed an ordinary action for extinctive prescription (Case No. 01044-2017-00523) seeking a judicial declaration that the dividend payment obligations owed to Lisa, S.A. arising from the profit distribution resolutions of April 27, 2010 and July 5, 2011 had prescribed, and that the payment obligation was therefore extinguished. The first-instance court dismissed the claim. Villamorey appealed.
Lisa argues that Guatemalan courts lack jurisdiction and territorial competence to adjudicate this case. Both Villamorey, S.A. and Lisa, S.A. were incorporated under Panama's General Corporation Law. The shareholder meetings and board meetings that approved the profit distributions were held in Panama. Guatemala's General Commercial Registry confirmed by official report that neither entity has registered a domicile in Guatemala or established a foreign branch. Lisa contends that the applicable legal institutions, including extinctive prescription and the rules governing dividend distribution, must be governed by Panamanian law, not the Guatemalan Civil Code articles (1501 and 1508) invoked in the complaint.
The brief highlights a contradiction in Villamorey's position: the corporate acts that created the obligation (shareholder and board meetings) were formalized under Panamanian law, which permits the board of directors to approve profit distributions, a power that does not exist under Guatemala's Commercial Code, where only the general shareholders' assembly holds that authority. Lisa argues it is inconsistent to invoke Panamanian corporate forms for the creation of the obligation while simultaneously applying Guatemalan law for its extinction.
Lisa introduced as counter-evidence Villamorey's own party declaration, in which the plaintiff expressly acknowledged that embargo orders over Lisa's dividends remain in force and that the dividends are held under judicial deposit in Villamorey's custody. Lisa also submitted official reports from three courts confirming active precautionary embargo measures:
All three reports establish that: (1) precautionary embargo orders have been decreed over Lisa's shares, dividends, monetary participation, and any liquidation proceeds in Villamorey; (2) Villamorey's manager and/or administrator was designated judicial depositary; and (3) all measures were in force at the time of filing.
Lisa argues that once the embargoes were decreed, the dividends left the patrimonial sphere of both the company and Lisa as shareholder, becoming part of the embargoed patrimonial estate. Villamorey's legal representative, appointed as judicial depositary, bears responsibility for the custody, safekeeping, and conservation of the embargoed assets. Lisa lacks free disposition over the dividends and cannot collect them while the embargo orders persist.
The brief develops the judicial deposit framework extensively, citing Civil Code articles 1974, 1978, 1979, and 1998, as well as articles 34, 35, and 40 of the Civil and Commercial Procedure Code, to establish that the depositary is not merely a custodian but is obligated to collect on receivables and preserve their validity. The depositary's obligation persists until a competent court orders termination and delivery.
The contradiction is central: the same entity that, as part of the Avicola Group, obtained the embargo orders preventing Lisa from disposing of its dividends, now seeks to extinguish by prescription the obligation to pay those very dividends. Lisa could not collect what was under judicial deposit by court order, so the prescription period cannot run against a party that lacks the legal capacity to exercise its right.
Lisa argues that, even applying Guatemalan law, the dividend payment obligation never achieved the exigibility required for the prescription period to begin running. The shareholder meeting's approval of profit distribution constitutes a mere declaration of intent, not an enforceable obligation. For the collection right to become exigible, the obligation must be determined as to: (1) the specific amount corresponding to each shareholder according to their equity participation, and (2) the form and date of payment, to be set by the board of directors pursuant to the assembly's authorization.
Lisa invokes Civil Code article 1321 on obligations to deliver items determined by species, Civil and Commercial Procedure Code article 336 on execution of certain or determined items, and Civil Code article 1592 on conditional obligations. Lisa contends the obligation remains subject to unfulfilled conditions precedent: determination of the total amount, each shareholder's proportion, the form of payment, and the date. Civil Code article 1269 provides that the acquisition of rights depends on the condition, so no enforceable obligation arises until the conditions are met.
Regarding Civil Code article 1401 and Commercial Code article 675, which establish immediate performance of obligations without a fixed term, Lisa argues they are inapplicable because they presuppose a certain, liquid, and determined obligation, a condition that was not met.
Lisa analyzes the documentary evidence offered by Villamorey and finds that the accounting certification issued by certified public accountant Eduardo Antonio Arenas Corominal on March 16, 2017 does not identify the holder of the account payable with precision, does not state the exact amount of the obligation, and does not determine the form or conditions of payment. Lisa contends that an accounting entry does not create rights or obligations by itself but merely reflects transactions whose existence must be proven through source documents (assembly minutes, board resolutions, communications to shareholders), none of which were produced. Lisa notes, however, that Villamorey's own evidence constitutes an express acknowledgment of the existence of an account payable in Lisa's favor.
The certifications issued by the secretary of Villamorey's board of directors reference an organ ("Secretary of the Board of Directors") that is not regulated by Guatemala's Commercial Code but by Panamanian law, reinforcing the territorial incompetence argument.
Lisa rejects Villamorey's attempt to use rulings from other courts as binding precedent. The brief states that the Avicola Group has filed over seventy dividend prescription lawsuits before Guatemalan courts, and that a significant number of those have been rejected by the courts for lack of the determination and exigibility elements required for prescription. Under the principle of judicial independence, rulings from other courts do not constitute binding precedent or obligatory legal doctrine, and each case must be resolved on its own evidence and circumstances.
The Fifth Civil and Commercial Court of Appeals issued its ruling on November 5, 2025, declaring Villamorey's appeal without merit, confirming the first-instance judgment, and ordering the appellant to pay costs.