Fifth Chamber reverses first-instance ruling, declares dividend obligation to Lisa, S.A. prescribed
Jun 26 2024
Court of Appeals
The Fifth Civil and Commercial Chamber of the Court of Appeals reversed the first-instance ruling and declared the dividend payment obligation of Reproductores Avícolas, S.A. (formerly Escobio, S.A.) in favor of Lisa, S.A. prescribed, arising from the distribution of profits agreed at the annual general shareholders' assembly held on May 31, 2012. The Chamber found that the plaintiff proved the constitutive facts of its claim and that the first-instance court resolved matters ex officio that only the parties could raise, violating the principle of procedural congruence.
Reproductores Avícolas, S.A. (successor by merger of Escobio, S.A.) filed an ordinary lawsuit for extinctive prescription against Lisa, S.A., seeking a declaration that the dividend payment obligation arising from the profit distribution agreement decreed by the annual general shareholders' assembly of Escobio, S.A. on May 31, 2012 was prescribed, having elapsed more than five years since the obligation became enforceable.
The first-instance ruling of March 28, 2023, issued by the Eighth Pluripersonal First Instance Civil Court, denied the claim on the grounds that Reproductores Avícolas failed to prove its case, specifically because there was no parameter to determine the date from which the obligation became enforceable by Lisa, S.A. The court made no special condemnation in costs.
The Chamber received the file on April 19, 2024. The appellant's brief was filed timely, and the hearing was held on June 6, 2024.
The appellant, acting on behalf of Reproductores Avícolas, S.A., sought reversal of items II and IV of the first-instance ruling and requested: a declaration that the ordinary lawsuit was granted, that the dividend payment obligation was prescribed for having elapsed more than five years since the May 31, 2012 assembly, that the obligation was extinguished, and that Lisa, S.A. be condemned to pay costs.
Lisa, S.A.'s representative argued that the appeal was improper because the plaintiff's claim lacked factual basis, was internally contradictory, and lacked evidence establishing the birth of the obligation and the prescription period. Lisa requested that the appeal be denied and the appellant condemned to costs.
The Chamber focused its analysis on two issues: the enforceability of the dividend obligation and the congruence of the first-instance ruling.
Enforceability of the obligation. The appellant argued, citing Article 134 of the Commercial Code, that the dividend payment obligation arises from the moment the shareholders' assembly approves distribution, with no additional act required from the Board of Directors to set the form and timing of payment. This argument was supported by Articles 1401 of the Civil Code and 675 of the Commercial Code, which establish that commercial obligations must be fulfilled without delay unless the parties have set a specific term.
To prove this, the plaintiff presented: (a) a certification from the President of the Board of Directors containing the relevant portion of the May 31, 2012 assembly minutes with the profit distribution resolution; (b) a certification from Certified Public Accountant Mónica Griselda Mendizábal Sinay confirming that the company's books recorded, as of June 1, 2012, an account payable derived from the assembly's distribution agreement; and (c) a certification that no lawsuit had been filed by Lisa, S.A. challenging the assembly's resolutions.
Absence of countervailing evidence. The Chamber confirmed that Lisa, S.A. did not submit any evidence during the corresponding evidentiary phase to rebut the plaintiff's claims. The plaintiff's evidence was given probative value by the first-instance judge without any contradicting evidence.
Resolution ex officio. The Chamber found that the first-instance judge violated Article 26 of the Civil and Commercial Procedural Code by resolving ex officio on the alleged absence of parameters to determine enforceability, a matter that Lisa, S.A. should have raised through its answer and excepciones perentorias. The first-instance ruling also required that the accounting certification specifically identify Lisa, S.A. as the payee, a requirement the Chamber found unfounded given that the certification established the existence of the debt in general terms arising from the assembly.
The Chamber concluded that the plaintiff proved the constitutive facts of its claim, that prescription was consummated by the passage of five years and Lisa, S.A.'s failure to take legal action to obtain payment, and that the first-instance ruling committed error by dismissing the claim based on considerations resolved ex officio.
Lisa, S.A. filed a cassation appeal against this ruling before the Supreme Court of Justice. The cassation of July 23, 2025 is pending resolution.