Avícola Las Margaritas Multi-Entity Abuse of Right Claim Against Lisa Dismissed Through Cassation

I. First Instance

Order

Avícola Las Margaritas, S.A. (acting also on behalf of entities it absorbed by merger: Importadora de Alimentos de Guatemala, S.A., Compraventa de Productos Alimenticios, S.A., and Compañía Alimenticia de Centroamérica, S.A.) filed the complaint on March 23, 2022, invoking Article 1653 of the Civil Code and Article 18 of the Judiciary Act. The plaintiff alleged that Lisa abused its shareholder rights by filing amparo petitions in 1999 and 2001 that suspended shareholder assemblies, a 2001 criminal complaint by Juan Guillermo Gutiérrez Strauss (Expediente 413-2001), a civil lawsuit before the U.S. District Court, S.D. Florida (Case No. 99-03519 CA-21), and 2018 criminal complaints in Guatemala (Expediente 01079-2018-00056) and Panama. The claim sought a declaration of abuse of rights and indeterminate damages.

Lisa, S.A. filed a negative answer and raised four peremptory exceptions: failure to meet the prerequisites for abuse of right, lack of standing in the plaintiff, lack of standing in the defendant, and statute of limitations. The court conducted an exhaustive analysis of each. On the prerequisites of abuse, it found that only two amparos named Avícola as autoridad denunciada, that the 2018 criminal complaints did not include the plaintiff or its merged entities, and that the Florida lawsuit was not directed against Avícola. On lack of standing in the plaintiff, it verified that Avícola did not appear as a suspect or defendant in any proceeding, confirmed by Avícola's own party declaration of January 9, 2024, and the Seventh Criminal Court's official report. On lack of standing in the defendant, it applied Article 14 of the Commercial Code to reject the attempt to attribute the personal acts of shareholder Gutiérrez Strauss to Lisa, S.A. It rejected the statute-of-limitations defense, reasoning that the damages claim was accessory to the principal claim of abuse of rights.

The court sustained three peremptory exceptions, dismissed the lawsuit in its entirety, and exempted both parties from costs. The ruling confirmed that Lisa's exercise of legal actions in defense of its shareholder rights does not constitute abuse of right, a complete victory for the defense.

II. Appeal

Appeal

Lisa, S.A., through its representative Paola Arana Estrada, filed an appellate brief before the Fifth Civil and Commercial Court of Appeals for the hearing of June 3, 2024, in appeal case 148-2024 Of.2°. The brief defended the first-instance ruling of February 7, 2024, structuring the defense around the six prerequisites for abuse of rights and demonstrating that none were met.

Lisa established that it did not appear as an accused or defendant in any of the proceedings characterized as abusive, that the criminal complaints were dismissed without any action taken against Avícola, and that the amparo petitions were granted by the courts. It argued that Avícola failed to specify the nature of the alleged commercial harm or prove defense costs, given that it was never a party to the cited proceedings. The brief requested full confirmation of the ruling with the sole modification of imposing costs on Avícola Las Margaritas as the losing party.

The Fifth Court of Appeals affirmed the first-instance ruling, concluding that Avícola's documentary evidence was neither suitable nor sufficient to demonstrate the alleged abuse. The appellate confirmation reinforced the determination that Lisa's legal actions fell within its rights as a shareholder.

III. Cassation

Cassation Ruling

Avícola Las Margaritas, S.A. filed cassation on substantive grounds before the Supreme Court of Justice, Civil Chamber, invoking two sub-grounds under Article 621(2) of the Code of Civil and Commercial Procedure: error of law and error of fact in the appreciation of evidence.

On the error-of-law sub-ground, Avícola argued that the Court of Appeals failed to confer probative value on three documents: amended pleadings from the Florida lawsuit, a criminal complaint before the Seventh Criminal Court (file 01079-2018-00056), and a criminal complaint filed with the Public Ministry of Panama. The Chamber identified irremediable deficiencies: the appellant failed to formulate individual theses for each piece of evidence challenged, presented contradictory arguments by simultaneously claiming the Court of Appeals omitted to appreciate the evidence and denied it its proper value, and failed to develop argumentation for each rule of the valuation system.

On the error-of-fact sub-ground, Avícola argued that the Court of Appeals erred in appreciating a 2001 criminal complaint filed by Juan Guillermo Gutiérrez Strauss, contending that he acted in his capacity as majority shareholder of Lisa. The Chamber found that the appellant failed to specify whether the alleged error was one of omission or distortion, and failed to present a clear thesis explaining the defect. Lisa responded that natural and juridical persons maintain separate legal personality.

The Chamber dismissed the cassation in its entirety, ordered Avícola to pay costs, and imposed a fine of Q100.00. The dismissal left both the first-instance ruling and its appellate confirmation fully intact, definitively closing the abuse-of-rights claim against Lisa.