Denies all five of Lisa's preliminary exceptions, advancing dividend prescription proceeding to merits phase
Mar 31 2025
1st Civil Court
The order of March 31, 2025, issued by the First Pluripersonal Court of First Instance, Civil Branch, Guatemala, denies all five preliminary exceptions filed by Lisa, S.A. in the ordinary proceeding brought by Inversiones Torre Nova, S.A. (Case 01045-2017-00408). The ruling clears the path to the merits phase of a proceeding whose purpose is to declare prescribed the obligation to pay dividends decreed at the general shareholders' assemblies of June 26, 2006, and April 6, 2011, an obligation that Lisa, S.A. contends has been interrupted by embargo orders obtained and executed by the Avícola Group entities themselves, including the plaintiff.
Inversiones Torre Nova, S.A., an Avícola Villalobos Group entity, filed an ordinary proceeding against Lisa, S.A., holder of 25% of the company's shares. The claim seeks a declaration that the obligation to pay dividends arising from the distribution-of-profits resolutions adopted by the Annual Ordinary General Assembly of Shareholders on June 26, 2006, and April 6, 2011, has prescribed and is therefore extinguished, invoking the five-year statute of limitations under the Civil Code.
Lisa, S.A. filed five preliminary exceptions: lack of jurisdiction (by territory and subject matter), defective complaint, lack of standing of the plaintiff's representative, failure to fulfill the condition to which the asserted right is subject, and failure to fulfill the term to which the asserted right is subject.
Lack of jurisdiction by territory. Lisa, S.A. argued that, as an entity organized under the laws of the Republic of Panama, the Guatemalan court lacked territorial jurisdiction, and that a Court of First Instance in Panama should hear the case under Article 12 of the Code of Civil and Commercial Procedure.
Lack of jurisdiction by subject matter. Lisa, S.A. invoked the twenty-fifth clause of the articles of incorporation of Inversiones Torre Nova, S.A., which provides that disputes between the company and shareholders arising from corporate activities must be resolved by equity arbitration. Lisa, S.A. maintained that the dividend prescription dispute is a patrimonial commercial matter arising from corporate activities, freely disposable under Article 3 of the Arbitration Law. Alternatively, Lisa, S.A. argued that Article 1039 of the Commercial Code requires the summary proceeding (juicio sumario) for actions arising from its application.
Defective complaint. Lisa, S.A. contended that the complaint failed to meet the clarity and precision requirements of Articles 106 and 107 of the Code of Civil and Commercial Procedure by not specifying the amount of the obligation whose prescription was sought, not attaching the articles of incorporation as a foundational document, and not demonstrating that the Board of Directors had determined the date and form of dividend payment as required by the sixteenth clause of the articles of incorporation.
Lack of standing. Lisa, S.A. argued that the power of attorney held by Inversiones Torre Nova's representative required prior written authorization from the Board of Directors for acts of disposition or acknowledgment of obligations. Lisa, S.A. maintained that a prescription action over shareholder dividends exceeded the representative's authority and required authorization from the General Assembly of Shareholders under Articles 132, 134, 135, and 137 of the Commercial Code, as the action sought to suppress rights conferred upon a shareholder.
Failure to fulfill condition and term. Lisa, S.A. argued that prescription could not be computed because: (i) Inversiones Torre Nova, S.A. had failed to convert bearer shares to registered shares and to deliver the share certificates to Lisa, S.A.; (ii) the General Assembly had not resolved to suppress Lisa's dividend rights under Article 137 of the Commercial Code; (iii) prescription had been interrupted by Lisa's summary opposition proceeding against the exclusion resolution, and by the precautionary embargo measures executed by the plaintiff itself and other Avícola Group entities on Lisa's shares, dividends, and participations across all group entities, under Article 1506(1) of the Civil Code.
Embargoes as interruption of prescription. Lisa, S.A. documented that multiple Avícola Group entities, including Reproductores Avícolas, S.A. (Case 01044-2012-00279), Compañía Alimenticia de Centroamérica, S.A. (Case 01045-2012-00210), and Industria Forrajera de Mazatenango, S.A. (Case 01045-2012-00242), obtained embargo orders on the shares, dividends, monetary participation, profits, and any liquidation that Lisa, S.A. held in every Avícola Group entity. Lisa, S.A. characterized the filing of the present prescription action as fraud upon the law: the same entities that materially prevented Lisa from collecting its dividends through embargo orders now sought to declare that right prescribed.
On territorial jurisdiction. The court found that the entities maintain commercial relationships and operations within Guatemala, and that the legal acts at issue were performed in Guatemala. It applied Article 34 of the Judiciary Act, which grants Guatemalan courts jurisdiction when an action relates to acts or legal transactions performed in Guatemala.
On subject-matter jurisdiction. The court concluded that the prescription action was not contemplated in the arbitration submission clause, without engaging with the analysis of Article 3 of the Arbitration Law or Article 1039 of the Commercial Code. The court did not address Lisa's subsidiary argument regarding the propriety of the summary proceeding.
On the defective complaint. The court characterized Lisa's arguments as merits issues to be addressed in the appropriate procedural phase, not through a preliminary exception for defective complaint. It found the complaint met the requirements of Articles 50, 61, 106, and 107 of the Code of Civil and Commercial Procedure.
On lack of standing. The court found that the plaintiff's representative held a duly executed General Judicial Power of Attorney that produced fe and full evidentiary value under Article 186 of the Code of Civil and Commercial Procedure, with express faculties for filing all classes of civil proceedings and remedies under the Judiciary Act.
On the condition and term. The court declared both exceptions without merit, finding that the legal relationship was not subject to any unfulfilled condition or term for perfection of the legal transaction, as defined under the Civil Code. The court did not analyze Lisa's arguments regarding the interruption of prescription by decreed and executed embargoes, nor the allegation that the same entities that embargoed the dividends now sought to declare the right to collect them prescribed. The court also did not address the failure to deliver share certificates or the exclusion resolution as a tacit acknowledgment of the debt.
Lisa, S.A. appealed this ruling. The statement of grievances dated June 30, 2025 challenges the ruling for errors of law in the analysis of the exceptions of lack of jurisdiction by subject matter, defective complaint, and failure to fulfill the term and condition, and seeks reversal of the order and exemption from costs.