Appeal Ruling

The First Civil and Commercial Court of Appeals dismissed the appeal filed by Administradora de Restaurantes, S.A. (formerly Compañía Importadora La Perla, S.A.) and affirmed in full the August 17, 2022 judgment rendered by the Eleventh Pluripersonal Civil Court of First Instance. The suit sought to compel Lisa, S.A. to pay damages allegedly caused by the acts that motivated its exclusion as a shareholder, pursuant to Article 228 of the Commercial Code. The court concluded that the claim is improcedent while the judicial opposition to the exclusion remains unresolved.

Case Background

Administradora de Restaurantes, S.A. (successor by merger of Compañía Importadora La Perla, S.A.) filed a summary commercial proceeding against Lisa, S.A. in 2012. The plaintiff alleged that, pursuant to a notarial record dated April 25, 2011, the Annual Ordinary General Meeting of Shareholders resolved to exclude Lisa as a shareholder for allegedly having committed willful acts against the company, and that under Article 228 of the Commercial Code the excluded shareholder must indemnify the company for damages caused by such acts.

The complaint was admitted on March 15, 2012. Lisa answered on December 3, 2012, denying the allegations, raising five peremptory defenses, and filing a counterclaim. The evidentiary period opened on November 27, 2013, for a term of fifteen days. The trial court issued an auto para mejor fallar on August 29, 2016, incorporating copies of rulings from related proceedings, including the opposition to exclusion proceeding by Distribuidora Avícola del Norte and the cassation in the Pollo Rey damages lawsuit. The first-instance judgment was not rendered until August 17, 2022, more than ten years after the complaint was admitted.

Plaintiff's Claims

Administradora de Restaurantes sought payment of damages and lost profits under Article 228 of the Commercial Code, which provides that an excluded shareholder is liable to the company for damages caused by the acts that motivated the exclusion. The plaintiff argued that Lisa had committed willful acts justifying the exclusion resolution and that the right to claim damages was independent of the outcome of the opposition proceeding.

Defense of Lisa, S.A.

Lisa denied the complaint and raised five peremptory defenses: (a) lack of veracity of the alleged facts, (b) absence of indispensable procedural prerequisites for the damages claim, (c) nonexistence of the claimed damages, (d) extinction of the plaintiff's right to claim damages, and (e) improcedence of damages for acts of third parties. Lisa also filed a counterclaim against the plaintiff.

On appeal, Lisa argued that the judgment should be affirmed because the complaint lacked a factual basis, no damage had been proven, and Lisa's exclusion as a shareholder remained under judicial challenge, rendering any derivative claim premature.

Court's Analysis

The court examined the two grievances raised by the appellant. The first challenged the trial court's ruling sustaining the defense of absence of indispensable procedural prerequisites, arguing that the only prerequisite was proof that Lisa caused the damages and that the pendency of the opposition proceeding was irrelevant. The second grievance challenged the negative answer to the complaint for lacking proof of extinctive or impeditive facts.

The court grounded its analysis in Articles 227 and 228 of the Commercial Code. It acknowledged that Article 228 grants the right to claim damages arising from the exclusion, but determined that Article 227 provides that the exclusion resolution takes effect thirty days after notification to the excluded shareholder, and that the filing of a judicial opposition suspends that period. Because the summary opposition proceeding remained pending, the exclusion resolution had not become final, and therefore the excluded shareholder's liability could not be enforced.

"No puede hacerse valer la responsabilidad del socio excluido en cuanto a los daños y perjuicios que supuestamente haya ocasionado por los actos que motivaron la exclusión si tales motivos que la propiciaron, se encuentran en discusión dentro del juicio sumario de oposición al acuerdo de exclusión" (Page 19)

The court concluded that the trial court's ruling was consistent with the law and the record, and that the appealed judgment caused no harm to the appellant.

Ruling

• The appeal filed by Administradora de Restaurantes, S.A. was declared without merit
• The August 17, 2022 judgment was affirmed in full
• Costs were imposed on the appellant
• The case file was ordered returned to the trial court with certification of the ruling

Legal Basis

• Articles 227 and 228 of the Commercial Code — govern shareholder exclusion and liability for damages arising from the acts that motivated it; the court held that a damages claim requires the exclusion resolution to be final
• Article 603 of the Civil and Commercial Procedural Code — limits the scope of appeal to matters unfavorable to the appellant and expressly challenged
• Article 1434 of the Civil Code — defines damages and lost profits as patrimonial losses and foregone lawful gains that must be an immediate and direct consequence of the breach
• Article 572 of the Civil and Commercial Procedural Code — governs the imposition of costs
• Article 29 of the Constitution of the Republic of Guatemala — right to effective judicial protection

Signatories

• Ramiro Stuardo López Galindo, Presiding Magistrate
• Marta Angélica Escribá Pimentel, First Associate Magistrate
• Hilda Jannette González Donado, Acting Second Associate Magistrate
• Brenda Maribel Monroy Loyo, Clerk of Court

Subsequent Proceedings

Administradora de Restaurantes, S.A. filed a cassation appeal before the Civil Chamber of the Supreme Court of Justice. In the ruling of August 29, 2025, the Supreme Court dismissed the appeal for technical deficiencies, finding that the appellant alleged only non-application of legal provisions without identifying any incorrect application. Costs and a statutory fine were imposed on the appellant.