Order

The Juzgado Décimo Primero de Primera Instancia del Ramo Civil of Guatemala, in a ruling dated August 17, 2022, dismissed the damages claim brought by Administradora de Restaurantes, S.A. (successor by merger of Compañía Importadora La Perla, S.A.) against Lisa, S.A. The claim was based on Article 228 of the Commercial Code, which requires the excluded shareholder to compensate the company for damages caused by the acts that motivated the exclusion. The court held that because Lisa's exclusion as shareholder was not yet final (an opposition proceeding remained pending), the essential procedural prerequisite for claiming damages was absent. This case is one of at least twenty-one parallel damages suits filed simultaneously by Avícola Villalobos Group entities against Lisa, all derived from a mass exclusion whose legality remained under judicial review.

Case Background

At an ordinary general shareholders' meeting on April 6, 2011, documented in a notarial deed dated April 25, 2011, Compañía Importadora La Perla, S.A. resolved to exclude Lisa, S.A. as shareholder. Lisa was notified of the exclusion on May 3, 2011. Lisa opposed the exclusion through summary proceedings filed before the same Eleventh Civil Court, which remained pending at the time of this ruling.

Administradora de Restaurantes, S.A. was recognized as successor to Compañía Importadora La Perla, S.A. by merger (absorption) pursuant to a court resolution of July 19, 2021.

The case proceeded as a commercial summary proceeding under Article 1039 of the Commercial Code. The court ordered an auto para mejor fallar, incorporating rulings and resolutions from related proceedings, including sentences from exclusion opposition cases in expedientes 01163-2011-01084 and 01043-2012-00238, among others.

Plaintiff's Claims

Administradora de Restaurantes sought a judgment ordering Lisa, S.A. to pay damages caused by the acts that motivated its exclusion as shareholder, with the amount to be determined by expert in incidental proceedings, plus interest and costs. The plaintiff alleged generally that Lisa had carried out continuous, deliberate acts over thirteen years designed to damage the Avícola Villalobos Group.

Defense of Lisa, S.A.

Lisa, S.A. answered the complaint in the negative and raised six peremptory exceptions and one mixed exception:

• Lack of veracity in the facts alleged. Lisa argued that the plaintiff failed to attach foreign court resolutions referenced in the complaint and omitted material facts, including that the Bermuda judgment condemned a related entity to pay $1,954,104.14 for having been used as a conduit to defraud Lisa.
• Lack of essential procedural prerequisites. Lisa argued that the exclusion was not final, that opposition proceedings were pending, and that claiming damages from an exclusion whose legality was under judicial review was premature. Lisa pointed out that Group entities themselves convened Lisa to shareholder meetings after the exclusion, confirming the exclusion was not yet effective.
• Non-existence of the alleged damages. Lisa maintained that its judicial and extrajudicial actions were legitimate responses to the non-payment of dividends since 1999.
• Extinction of the right to claim damages. Lisa argued that the acts invoked as damaging were time-barred.
• Damages cannot be claimed for acts of third parties. Lisa argued the acts attributed to it were performed by others.
• Lack of standing of the plaintiff. Lisa argued that Compañía Importadora La Perla did not appear as a party in the foreign proceedings nor as the target of the publications cited as sources of damage.

On dividends, Lisa quantified its stake in the Avícola Villalobos Group as of January 2012: share value of $205,614,050, illegally retained dividends of $128,964,121, for a total of $334,578,171. Annual dividend payments had been $5,481,851 and had not been paid since the fiscal year ending June 30, 1999. Lisa was excluded from twenty-two Group entities simultaneously.

Counterclaim. Lisa counterclaimed for abuse of right under Article 1653 of the Civil Code, arguing that filing the lawsuit constituted an abuse of process designed to justify the continued non-payment of dividends. Lisa noted that Group entities had filed at least twenty-one damages suits based on an exclusion that was not final, amounting to a coordinated campaign to strip Lisa of its assets.

Court's Analysis

On the lack of procedural prerequisites (sustained). The court held that Article 228 of the Commercial Code presupposes that the shareholder's exclusion is final before damages can be claimed. The report from the judge of the Eleventh Civil Court confirmed that Lisa had filed summary opposition proceedings that remained pending. Lisa's party declaration admitted the exclusion was being litigated in a separate proceeding. Because no evidence was offered showing a final judgment dismissing the opposition, the court concluded it was premature to analyze whether damages had been proven or could be quantified.

On lack of veracity (denied). The court found that the plaintiff had proven the exclusion and its notification through notarial deeds with full evidentiary value, and that the failure to attach all foreign court resolutions did not undermine the veracity of the central facts.

On extinction of the right (denied). The court reasoned that the one-year prescription period under Article 1673 of the Civil Code did not apply, because Article 228 of the Commercial Code establishes a special regime. Under Article 1513 of the Civil Code, prescription runs from the date a final condemning judgment is issued or from the date the damage was caused, neither of which had occurred given the exclusion was not final.

On lack of standing (denied). The court held that the plaintiff had standing to claim damages under Article 228 of the Commercial Code as the company from which Lisa was excluded. The court grounded this finding in the fact that Lisa had commissioned a sworn declaration that was used to the detriment of the Avícola Villalobos Group, of which Compañía Importadora La Perla was a member.

On the counterclaim (denied). The court found that Lisa did not specify with clarity the damages suffered or their quantification. While the lawsuit was premature, the court concluded it was not abusive, as it was grounded in the mechanism provided by Article 228 of the Commercial Code.

On the answer to the counterclaim (denied). The court rejected the plaintiff's argument that the lawsuit was not premature, reiterating that the finality of the exclusion was an essential prerequisite.

Ruling

• The peremptory exceptions of lack of veracity, non-existence of damages, extinction of the right to claim, and inadmissibility of damages for acts of third parties were denied
• The exception of lack of standing of the plaintiff was denied
• The peremptory exception of lack of essential procedural prerequisites for the damages claim was sustained
• The negative answer to the complaint was sustained
• The commercial summary proceeding brought by Administradora de Restaurantes, S.A. against Lisa, S.A. was dismissed
• The counterclaim brought by Lisa, S.A. was denied
• The answer to the counterclaim was denied
• The losing party was ordered to pay costs

Legal Basis

• Article 228 of the Commercial Code — excluded shareholder's liability for damages caused by acts motivating the exclusion
• Article 227 of the Commercial Code — excluded shareholder's right to oppose the exclusion
• Article 230 of the Commercial Code — three-month statute of limitations for exercising the right of exclusion
• Article 1039 of the Commercial Code — summary proceeding as the procedural vehicle for commercial disputes
• Article 1434 of the Civil Code — definition of damages as the immediate and direct consequence of breach
• Article 1645 of the Civil Code — obligation to repair intentional or negligent damage
• Article 1653 of the Civil Code — liability for abuse of right
• Article 1673 of the Civil Code — one-year prescription for tort claims
• Article 1513 of the Civil Code — prescription runs from final judgment or from the date damage was caused
• Articles 126, 127, and 186 of the Code of Civil and Commercial Procedure — burden of proof and evidentiary valuation of documents
• Articles 573 and 574 of the Code of Civil and Commercial Procedure — award of costs

Subsequent Proceedings

The ruling was appealed, and the appellate ruling of December 5, 2024 upheld the dismissal of Administradora de Restaurantes' claim. Subsequently, the cassation ruling of August 29, 2025 dismissed the appeal for defective legal argumentation, leaving the first-instance ruling final.