Order

The Twelfth Pluripersonal Civil Court of First Instance of Guatemala dismissed the prescription claim filed by Avícola Villalobos, S.A. against Lisa, S.A., rejecting Avícola's attempt to extinguish its own obligation to pay dividends for the 2011 fiscal year and accumulated prior-year dividends, as approved at the annual ordinary shareholders' assembly held on May 24, 2012. The court held that Avícola failed to establish with certainty when the dividend obligation became legally enforceable, an essential prerequisite for computing the five-year prescription period under Article 1508 of the Civil Code.

Case Background

Avícola Villalobos, S.A. initiated a commercial summary proceeding (juicio sumario mercantil) seeking a declaration of extinctive prescription, exercised as an affirmative action, against Lisa, S.A. Avícola's representative, Elmer Baldemar Ambrocio Mazariegos, acted under his own direction and that of attorneys Juan Luis Aguilar Salguero, José Santiago Aguilar Mendizábal, Juan Miguel Ordóñez Zea, Javier Antonio Mendizábal Rojas, and Marvin Enrique Taracena Espinoza. Lisa, S.A. appeared through its special judicial representative, Paola Arana Estrada.

Lisa, S.A. filed preliminary exceptions, which were denied by order of May 29, 2018. Lisa subsequently failed to answer the complaint within the statutory period and was declared in default (rebeldía) by resolution of November 4, 2019, with the complaint deemed answered in the negative. The evidentiary period ran its course. The hearing (audiencia de vista) was held on April 20, 2021.

Plaintiff's Claims

Avícola Villalobos, S.A. sought a judicial declaration that its obligation to pay dividends to Lisa, S.A., arising from the annual ordinary shareholders' assembly of May 24, 2012, had been extinguished by prescription. The dividends in question corresponded to the fiscal year ending December 31, 2011, plus accumulated dividends from prior years. Avícola argued that the obligation became enforceable the day after the assembly, that the funds were made available to shareholders at the company's registered office, and that the five-year prescription period elapsed on May 23, 2017, without Lisa having demanded payment.

Court's Analysis

Enforceability (exigibilidad) of the obligation. The court focused its analysis on determining when the dividend payment obligation became legally enforceable, the essential prerequisite for computing prescription under Article 1508 of the Civil Code. The court noted that under Article 105 of the Commercial Code, the right to participate in profit distribution is a shareholder right, but that the exercise of such rights and the obligations of both shareholders and the company are governed by the articles of incorporation (escritura constitutiva), pursuant to Article 15 of the same code.

The court found it necessary to examine the articles of incorporation to determine whether they contained provisions regarding the manner and timing of dividend payments. However, Avícola Villalobos never submitted the articles of incorporation as evidence. While Article 132 of the Commercial Code assigns the shareholders' assembly competence to decree profit distribution, the extract from the May 24, 2012 assembly minutes did not specify payment conditions, deadlines, or method of payment.

"El elemento de la exigibilidad de la obligación a la que alude el artículo 1508 del Código Civil, norma en la cual la parte actora fundamenta su pretensión y la cual preceptúa: 'La prescripción extintiva se verifica en todos los casos no mencionados en disposiciones especiales, por el transcurso de cinco años, contados desde que la obligación pudo exigirse (...)' no es claro ni preciso en el presente caso; por lo que el juzgador no cuenta con el medio de prueba idóneo que le permita determinar con claridad y precisión desde que momento debe de computarse el plazo de prescripción." (Page 11)

Evidentiary insufficiency. The court evaluated each piece of evidence submitted by Avícola:

• Mercantile Registry certification (February 14, 2017): proved Avícola Villalobos's corporate registration. Granted probative value under Article 186 of the Civil and Commercial Procedure Code.
• Statement from the chairman of the board of directors (January 11, 2018) regarding the May 24, 2012 assembly: proved that the assembly unanimously approved distribution of 2011 dividends and accumulated dividends. Granted probative value.
• Statement from the chairman of the board of directors (January 11, 2018) regarding the absence of lawsuits challenging the distribution resolution: the court denied probative value, holding that it was not the appropriate means to establish this fact, as the Judicial Administration Auxiliary Services Center is the entity designated by law to certify such information.
• Special judicial power of attorney from Lisa, S.A. in favor of attorney Carmen Ileana Peralta Marroquín: granted probative value with no substantive relevance.

Lisa, S.A. was declared in default and submitted no evidence.

The court concluded that it could not be established that Lisa, S.A. had the opportunity to exercise its right to access the dividends in an expeditious manner and without any limitation or encumbrance restricting its free disposal. Avícola's assertion that the funds were "made available to shareholders" at the registered office was not supported by sufficient evidence.

Ruling

• The prescription claim filed by Avícola Villalobos, S.A. against Lisa, S.A. was dismissed
• Avícola Villalobos was ordered to pay procedural costs

Legal Basis

• Articles 2, 12, 203, 204 of the Constitution of Guatemala — constitutional guarantees of access to justice and due process
• Article 126 of the Civil and Commercial Procedure Code — burden of proof
• Article 186 of the Civil and Commercial Procedure Code — probative value of public documents
• Articles 229 to 243 of the Civil and Commercial Procedure Code — summary proceeding procedure
• Articles 572, 573 of the Civil and Commercial Procedure Code — procedural costs
• Articles 1501 and 1508 of the Civil Code — extinctive prescription and five-year period
• Articles 15, 105, 132 of the Commercial Code — regulation of commercial entities, shareholder rights, and profit distribution

Signatories

• Twelfth Pluripersonal Civil Court of First Instance of Guatemala

Subsequent Proceedings

Avícola Villalobos filed a constitutional amparo before the Third Civil and Commercial Court of Appeals challenging procedural rulings by the trial court, including the admission of BDT Investments Inc. as a supporting co-defendant. The court denied the amparo in its ruling of January 27, 2025, imposing costs and a Q 1,000 fine on Avícola's counsel.

Avícola Villalobos appealed the first-instance judgment. The Third Civil and Commercial Court of Appeals affirmed the judgment in full in its ruling of December 9, 2025, rejecting the appeal and ordering Avícola to pay appellate costs.