Exp. 01045-2012-00179 · Precautionary Measure Revocation
The First Chamber of the Court of Appeals, Civil and Commercial Division, denied the appeal filed by Agroprocesos Avícolas, S.A. on August 17, 2017, fully confirming the revocation of precautionary measures and imposing costs on the appellant in both instances.
Agroprocesos Avícolas, S.A. sued Lisa, S.A. in an ordinary civil proceeding before the First Civil Court of First Instance of Guatemala (Expediente 01045-2012-00179). At the outset, the court decreed precautionary measures (embargoes) against Lisa, conditioned on Agroprocesos maintaining a Q100,000.00 surety bond. Lisa petitioned for revocation of the measures after the bond expired in October 2013 without renewal. The court revoked the measures in December 2016, and Agroprocesos' attempts to annul that decision were rejected at both the trial and appellate levels, leaving the lifting of embargoes final and imposing costs on the plaintiff.
The First Civil Court of First Instance of Guatemala granted Lisa, S.A.'s petition and revoked the precautionary measures imposed against it on March 12, 2012, ordering the immediate lifting of all embargoes. The ruling rested on the finding that surety bond No. 44581, class B-1, issued by Fianzas El Roble, S.A. for Q100,000.00, had expired on October 8, 2013 without renewal by Agroprocesos Avícolas, S.A. The court applied Article 531 of the Code of Civil and Commercial Procedure, which requires the party requesting precautionary measures to maintain sufficient guarantee, and ordered notices sent to the managers and administrators of the affected entities for immediate compliance.
The revocation was a procedural victory for Lisa, eliminating the embargoes that restricted its assets in this proceeding. Agroprocesos lost its principal precautionary tool by failing to discharge the burden of renewing the guarantee that conditioned the maintenance of the measures.
Agroprocesos Avícolas, S.A., through its representative Alberto Antonio Morales Velasco, filed a nullity motion for procedural defect and violation of law against the revocation order. It argued that the court should have granted a five-day period to renew the guarantee under Article 532 of the Code of Civil and Commercial Procedure, that the lifting request should have been processed as an incident under Article 135 of the Judiciary Act, and that Article 519 of the Code of Civil and Commercial Procedure required a separate incidental track. Lisa responded that the bond had expired without renewal and the revocation was lawful.
The court analyzed the motion under Articles 613, 616, and 617 of the Code of Civil and Commercial Procedure, concluding that the challenged order contained neither procedural defect nor violation of law. The revocation was a direct consequence of the bond's expiration, and the original warning already established the consequences of non-compliance. Agroprocesos was ordered to pay the costs of the incident.
Agroprocesos appealed the denial of nullity to the First Chamber of the Court of Appeals, Civil and Commercial Division, repeating its three grievances: omission of a period to renew the guarantee, the need for incidental processing, and violation of the right of defense. The Court, within the framework of Article 603 of the Code of Civil and Commercial Procedure, examined each grievance and rejected them all.
The Court's central reasoning relied on Article 534 of the Code of Civil and Commercial Procedure: if precautionary measures are issued without hearing the party against whom they are sought, their revocation does not require a prior hearing either. Agroprocesos had been expressly warned when the guarantee was set that failure to maintain the bond would result in the measures being lifted. The Court confirmed the appealed order in its entirety, including the first-instance costs award, and imposed additional costs on Agroprocesos in the second instance.
The appellate ruling left the revocation of precautionary measures final and unappealable. Lisa, S.A. was freed from the restrictions imposed by the embargoes decreed in this proceeding, and the imposition of costs in both instances confirmed the futility of Agroprocesos' procedural challenges.
| Date | Document | Issued by |
|---|---|---|
| Dec 6 2016 | Order | 1st Civil Court |
| Feb 1 2017 | Order | 1st Civil Court |
| Aug 17 2017 | Appeal Ruling | Court of Appeals |
The revocation of precautionary measures became final after the appeal was denied in August 2017. Lisa, S.A. is free from the embargoes decreed in this proceeding.