Lisa argues appellate court erred in declaring prescription of Reproductores Avícolas dividend obligation
Jul 23 2025
Lisa, S.A.
This hearing brief, filed by Lisa, S.A. through its representative Paola Arana Estrada before the Civil Chamber of the Supreme Court of Justice, is the centerpiece of Lisa's defense in cassation against the June 26, 2024 ruling by the Fifth Court of Appeals, Civil and Commercial Division, which reversed the favorable first-instance ruling of March 28, 2023 and declared the dividend payment obligation of Reproductores Avícolas, S.A. (formerly Escobio, S.A.) to Lisa prescribed and extinguished. The appeal is grounded in two cassation sub-motives: error of fact in evidence appreciation through misrepresentation, and error of law in evidence appreciation through assignment of probative value contrary to law.
Escobio, S.A. (now Reproductores Avícolas, S.A., by merger through absorption) filed an ordinary lawsuit for extinctive, negative, or liberatory prescription exercised as an action against Lisa, S.A., seeking a declaration that the dividend payment obligation arising from the profit distribution agreement approved by Escobio's Annual General Shareholders' Assembly on May 31, 2012 had prescribed. The plaintiff argued that dividends were enforceable from the day after the assembly and that, with more than five years having elapsed without Lisa filing suit to collect them, the obligation was prescribed under Article 1508 of the Civil Code.
Lisa answered the complaint in the negative and filed two peremptory exceptions. The first, for non-enforceability of the obligation, argued that the Shareholders' Assembly only decreed the distribution of dividends without specifying the amount per share, form of collection, place of payment, or instructions to the administration, leaving the obligation conditional upon the Board of Directors (Consejo de Administración) determining the form, mode, time, and place of payment pursuant to Article 166 of the Commercial Code. Absent that determination, the obligation was not enforceable and the prescription period could not begin to run. The second exception, for inapplicability of prescription due to interruption, invoked both Lisa's own judicial actions (the summary opposition to its exclusion as shareholder, filed on June 7, 2011) and actions by the plaintiff and its affiliated entities, which through seven separate proceedings obtained precautionary embargo orders over all of Lisa's dividends within the Avícola Villalobos Group.
The proceedings with active embargoes identified by Lisa include lawsuits filed by Avícola Villalobos, S.A. (Exp. 01046-2009-00357), Exp. 01163-2012-00178, Compañía Alimenticia de Centroamérica, S.A. (Exp. 01045-2012-00210), Industria Forrajera de Mazatenango, S.A. (Exp. 01045-2012-00242), Reproductores Avícolas, S.A. (Exp. 01044-2012-00279), and Industria Avícola del Sur, S.A. (Exp. 01044-2011-613, consolidated with Exp. 01042-2012-129), among others. Lisa states that, by judicial order, all of its dividends in the Avícola Villalobos Group are currently under embargo, including those from the plaintiff entity itself.
The first-instance ruling of March 28, 2023 dismissed the prescription claim, concluding that the plaintiff failed to prove its case because no parameter existed to determine the enforceability date without the company's articles of incorporation (escritura constitutiva). The appellate ruling of June 26, 2024 reversed that decision, declared the dividend obligation prescribed and extinguished, and condemned Lisa to pay litigation costs.
Lisa invokes Article 621(2) of the Code of Civil and Commercial Procedure, alleging misrepresentation (tergiversación) of the facts the appellate court held as proven through the certificate issued on January 11, 2018 by the President of the Board of Directors of Escobio, S.A., containing the relevant portion of the minutes from the Annual General Shareholders' Assembly of May 31, 2012 with the profit distribution agreement.
Lisa argues that this certificate proves only that the assembly took place and that dividends were decreed, not that the obligation was enforceable from that date. The appellate court drew conclusions inconsistent with the document's content: it held that the obligation was enforceable from the assembly date, while the plaintiff itself stated in its complaint that enforceability arose "the day after" the assembly, contradicting Article 675 of the Commercial Code, which requires immediate performance of commercial obligations. The appellate court substituted a finding that the plaintiff could not establish through its own evidence, defining the moment of enforceability in place of the party bearing the burden of proof.
Lisa emphasizes that the first-instance judge correctly analyzed that, without the company's articles of incorporation (escritura constitutiva) having been offered as evidence, it was impossible to determine whether a specific procedure for dividend distribution conditioned enforceability. The appellate court, by ruling to the contrary, committed an error determinative of the outcome.
Lisa alleges a violation of Article 127 of the Code of Civil and Commercial Procedure, arguing that the appellate court assigned probative value different from that prescribed by law to the certificate issued on January 11, 2018 by the President of the Board of Directors of Escobio, S.A., in which he states having reviewed the company's "Judicial Process Control Records" (Registros de Control de Procesos Judiciales), certifying that no lawsuit by Lisa challenging the profit distribution agreement appeared in those records.
The appellate court concluded that this certificate proved Lisa had failed to exercise its rights regarding dividend collection and that prescription had therefore been consummated. Lisa argues this conclusion violates the rules of reasoned critical analysis (sana crítica razonada), because only the Judiciary (Organismo Judicial) through its various organs can determine whether a person has filed a lawsuit against another, not an administrative organ of a legal entity. Furthermore, the certificate only attests to the absence of lawsuits challenging the distribution agreements, not the absence of collection actions for dividends, which are legally distinct claims.
"saben perfectamente que el único ente capaz de determinar si una persona ha entablado acción judicial en contra de otra, es el ORGANISMO JUDICIAL a través de sus diferentes órganos, y no es potestad de un órgano administrativo de una persona jurídica el determinar si existen o no demandas en su contra por determinada persona" (Page 13)