Lisa, S.A. appeals denial of preliminary exceptions for incompetence, defective complaint, and unmet conditions in dividend prescription case
Jun 30 2025
Lisa, S.A.
Lisa, S.A., through its special judicial representative Rossana Mishelle Ramírez Paredes, files a brief of grievances before the First Civil and Commercial Court of Appeals, challenging the March 31, 2025 order issued by the First Multi-Judge First Instance Civil Court of Guatemala, which denied Lisa's preliminary exceptions in the ordinary proceeding for dividend prescription brought by Inversiones Torre Nova, S.A. The appeal argues that the first-instance court committed errors of law in dismissing each exception, and requests full revocation of the challenged order.
Inversiones Torre Nova, S.A. filed an ordinary civil lawsuit against Lisa, S.A. seeking a declaration of extinctive prescription of dividends decreed in shareholder assemblies. Lisa raised preliminary exceptions of lack of jurisdiction, defective complaint, and failure to satisfy the conditions and terms for the claimed right. The March 31, 2025 order denied all exceptions and imposed costs on Lisa. On June 25, 2025, Lisa was notified of the admission of the appeal, with a three-day period to present grievances before the appellate court.
Lisa argues that the first-instance court committed an error of law by assuming jurisdiction over a dispute contractually submitted to arbitration. Clause Twenty-Fifth of the bylaws of Inversiones Torre Nova, S.A. provides:
"Las diferencias que surjan entre la sociedad y los accionistas, solo entre éstos con motivo o que resulten de la escritura social o de las disposiciones o actividades sociales (...) serán dirimidas en juicio Arbitral de equidad..." (Page 2)
Lisa contends that the dispute over dividend prescription falls squarely within corporate activities covered by the arbitration agreement and constitutes arbitrable subject matter under Article 3 of the Arbitration Law. The arbitration agreement is in writing, incorporated in the articles of incorporation, and binding on both the company and its shareholders under Articles 10 of the Arbitration Law, 15 and 1039 of the Commercial Code. Lisa further argues that the court misapplied the constitutional precedent (Case No. 1107-2010), which addressed structural corporate matters such as shareholder exclusion, to a dispute centered on dividend prescription. The challenged order violates the principle of contractual autonomy by permitting one party to circumvent the arbitration clause expressly agreed upon in the bylaws.
Lisa argues that the complaint lacks specificity regarding the amount, form, and date of enforceability of the obligation whose prescription is sought, in violation of Article 106 of the Civil and Commercial Procedural Code. The court accepted the mere mention of the abstract right to dividends as sufficient, when prescription can only operate on determined and enforceable obligations. The plaintiff failed to attach essential documents: the articles of incorporation and the Board of Directors' determination of the form and date of payment as required by the bylaws, in violation of Article 107 of the same code. Lisa notes that the plaintiff bases its standing on the bylaws of Inversiones Torre Nova, S.A. but did not attach a copy of that instrument. The court also failed to address the arbitration clause contained in the articles of incorporation, whose existence Lisa established through evidence.
Lisa argues that the obligation to pay dividends is conditioned upon the completion of material and formal acts: the precise determination of amounts, dates, and forms of payment, pursuant to Article 38 of the Commercial Code. Extinctive prescription can only begin to run when the right is liquid, certain, and enforceable. Lisa contends that prescription was interrupted and suspended by the existence of attachments on Lisa's shares and dividends, pursuant to Article 1506(1) of the Civil Code, which provides that prescription is interrupted by a duly notified judicial demand or by an executed precautionary measure. Multiple Avícola Group entities obtained attachment orders on Lisa's dividends, shares, and corporate equity, materially preventing payment of the claimed dividends. This circumstance constitutes an effective suspension of the right that the first-instance court failed to weigh.
This grievance connects directly to the pattern of procedural abuse that characterizes the Avícola Group's litigation strategy: the same entities that obtained attachments on Lisa's dividends now seek, through Inversiones Torre Nova, S.A., to prescribe those very dividends whose collection they themselves prevented.
Lisa objects to the imposition of costs, arguing that it acted in good faith and in exercise of the procedural rights afforded by due process. The court based the cost award solely on Lisa's status as the losing party, without evaluating whether the exceptions were filed in bad faith.