Order

The 1st Civil Court of Guatemala, in a ruling dated May 31, 2022, dismissed the ordinary damages claim filed by Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.) against Lisa, S.A. The claim, initiated on March 19, 2012, sought indemnification for an alleged smear campaign and purportedly abusive legal actions. After more than ten years of proceedings, the court determined that the acts attributed to Lisa, S.A. were carried out by third parties with no proven direct link to the defendant entity. Lisa's counterclaim, alleging abuse of right in the filing of the lawsuit, was likewise dismissed for lack of proof.

Case Background

Avícola Las Margaritas, S.A. (formerly Compañía Alimenticia de Centroamérica, S.A.) filed an ordinary damages action on March 19, 2012, against Lisa, S.A., claiming damages arising from two categories of conduct: purportedly abusive legal actions filed across multiple jurisdictions, and a smear campaign conducted through radio broadcasts, printed publications, and political activity. The plaintiff preliminarily quantified patrimonial damages at Q4,467,032.32 based on an accounting certification as of December 31, 2011, and additionally sought moral damages, with both amounts to be determined by court-appointed experts.

Lisa, S.A. answered the complaint in the negative on June 13, 2016, and filed five peremptory exceptions. The answer came more than four years after service of process (March 28, 2012).

Plaintiff's Claims

The plaintiff alleged that Lisa, S.A., acting through its ultimate beneficiaries Juan Arturo Gutiérrez Gutiérrez and Juan Guillermo Gutiérrez Strauss, carried out a series of harmful acts: filing lawsuits in multiple jurisdictions (Guatemala, Panama, the United States, the British Virgin Islands, Bermuda) in violation of the twenty-fifth clause of the corporate charter, which designated the company's domicile as the exclusive forum for shareholder disputes; financing a radio campaign through Radio Diez (frequency 107.7 FM) hosted by Oscar Rodolfo Castañeda on the program "Claro y Directo"; circulating printed publications imputing illicit conduct to the Avícola Group; and using political and union channels to pressure state authorities.

The plaintiff claimed these acts undermined its patrimony and severely damaged its image, prestige, and commercial reputation. As central evidence, the plaintiff invoked the lawsuit filed by Margarita Gutiérrez Strauss de Castillo in Ontario, Canada, in February 2011 (Case No. CV-11-9062-00CL), which allegedly revealed the corporate structure (Xela Enterprises, LTD and Boucheron Universal Corp.) used to finance actions against the Avícola Group.

Defense of Lisa, S.A.

Lisa, S.A. filed five peremptory exceptions and a counterclaim.

Lack of veracity in the stated facts. Lisa, S.A. argued that the plaintiff's allegations were false, that lawsuits filed against the Avícola Group had not been dismissed but rather resulted in condemnatory findings, and that the Avícola Group had engaged in tax evasion and failed to pay dividends to Lisa, S.A. Lisa submitted a compact disc ("The Gutiérrez Case: The Evidence") containing testimony from Avícola Group executives describing irregular accounting practices.

Lack of procedural prerequisites. Lisa, S.A. argued that the exclusion resolution adopted on April 5, 2011, was not final, as Lisa had opposed it in summary proceedings before the 15th Civil Court, which ordered provisional cessation of the exclusion agreement's legal effects. Lisa maintained that damages could not be claimed for allegedly tortious acts underlying an exclusion whose legality remained under judicial review.

Non-existence of damages. Lisa, S.A. contended that its actions constituted the legitimate exercise of its rights as a minority shareholder that had not received dividends since 1999, and that the plaintiff itself had caused the situation by failing to meet its corporate obligations.

Extinction of the right. Lisa, S.A. raised prescription under Article 1673 of the Civil Code, arguing that the acts complained of predated the lawsuit by more than ten years.

Inapplicability due to acts of third parties. Lisa, S.A. argued that the acts invoked (witness testimony, radio program, publications, union and political activism) were carried out by individuals and entities distinct from Lisa, S.A., and that the plaintiff should direct its claims against the actual perpetrators.

Counterclaim. Lisa, S.A. counterclaimed, alleging that the lawsuit constituted an abuse of right under Article 1653 of the Civil Code. Lisa argued that the simultaneous filing of 22 summary exclusion proceedings and 21 damages suits by the Avícola Villalobos Group was a strategy to avoid paying dividends, and that this caused Lisa patrimonial harm.

Court's Analysis

On the principal damages claim. The court applied Article 1648 of the Civil Code, which establishes a presumption of fault and limits the claimant's burden to proving the damage suffered and the causative act. The court examined the documentary evidence, including the Canadian lawsuit filed by Margarita Gutiérrez Strauss de Castillo and its accompanying financial report, and concluded that the evidence showed the acts attributed to Lisa, S.A. were carried out by the corporate structure of Xela Enterprises, LTD and Boucheron Universal Corp., not by Lisa, S.A. in its own name. The court found:

"LISA, S.A. no figura dentro de los mismos como la entidad que llevó a cabo dichos actos, ya que en los mismos se hace mención de forma expresa de la entidad Xela Enterprises, LTD y Boucheron Universal Corp.; por ende, el hecho de que LISA, S.A. forme parte de la estructura y entidades antes mencionadas, no prueba de forma fehaciente que LISA, S.A. en nombre propio haya realizado los actos que se indican" (Page 63)

Treatment of Lisa's peremptory exceptions:

• Lack of veracity: denied. The court found the plaintiff presented sufficient evidence to support its claim, and that Lisa's evidence (complaint filings and interlocutory orders resolving preliminary exceptions) did not establish the existence of condemnatory judgments against the Avícola Group.
• Lack of procedural prerequisites: denied. The court determined that the cause of the claimed damages was the smear campaign, not the shareholder exclusion, and that the claim's viability did not depend on the exclusion being final.
• Non-existence of damages: denied. The court invoked Articles 18 of the Judiciary Act and 1653 of the Civil Code on abuse of right, noting that the exercise of a right cannot serve as cover when the ultimate purpose is to harm another.
• Extinction of the right: denied. The court found that Lisa, S.A. failed to specify the date from which the prescription period should be computed and did not adequately support its argument.
• Inapplicability due to acts of third parties: sustained. The court found that the evidence did not establish a direct link between Lisa, S.A. and the acts complained of, as these were carried out by distinct entities and individuals (Xela Enterprises, LTD, Boucheron Universal Corp., Oscar Rodolfo Castañeda, among others). Although Lisa, S.A. formed part of the corporate structure, the court found this connection insufficient to attribute direct responsibility.

On Lisa's counterclaim. The court rejected the exceptions of lack of connection by title and object (finding that both parties claimed damages with the same procedural object) and of lack of clarity (applying the iura novit curia principle). However, it sustained the exception of lack of right due to the absence of reliable evidence of damages, citing Supreme Court precedent (December 23, 1965 ruling) requiring proof not only of the causative act but also that damages were actually suffered.

On prescription of the counterclaim. The court rejected this exception, determining that under Article 112 of the Civil and Commercial Procedure Code, service of the complaint interrupted prescription, and the one-year period under Article 1673 of the Civil Code ran from that service date (March 28, 2012).

Ruling

• Denied the peremptory exceptions of lack of veracity, lack of procedural prerequisites, non-existence of damages, and extinction of the right
• Sustained the peremptory exception of inapplicability of damages for acts committed by third parties
• Dismissed the ordinary damages claim by Avícola Las Margaritas, S.A. against Lisa, S.A.
• Denied the peremptory exceptions against the counterclaim for lack of connection, lack of clarity, absence of proof, prescription, lack of right due to tortious acts, and lack of right due to plaintiff's good standing
• Sustained the exception of lack of right due to absence of reliable proof of the damages claimed in the counterclaim
• Dismissed the counterclaim by Lisa, S.A. against Avícola Las Margaritas, S.A.
• No costs awarded

Legal Basis

• Articles 1645 to 1673 of the Civil Code -- extracontractual liability regime, presumption of fault (art. 1648), abuse of right (art. 1653), and prescription of damages actions (art. 1673)
• Articles 25, 26, 27, 28, 31, 44, 51, 66, 67, 69, 71, 72, 78, 79, 96, 106, 107, 111, 113, 114, 118, 119, 123, 126, 127, 128, 129, 177, 178, 194, 195, 196, 198, 573, 574 of the Civil and Commercial Procedure Code -- ordinary proceedings, burden of proof, counterclaim, and costs
• Articles 141, 142, 143, 144, 147, 151 of the Judiciary Act -- statutory interpretation and abuse of right (art. 18)

Signatories

• No individual signatories are identified in the document

Subsequent Proceedings

The ruling was appealed by Avícola Las Margaritas, S.A. The Court of Appeals upheld the dismissal on May 17, 2023. Subsequently, the Supreme Court rejected the cassation petition filed by Avícola Las Margaritas, S.A. on April 5, 2024, ordering the appellant to pay costs and a Q500 fine.