Third Chamber affirms dismissal of Avícola Villalobos's prescription claim over Lisa's 2012 dividends for failure to prove exigibility
Dec 9 2025
Court of Appeals
The Third Civil and Commercial Court of Appeals affirmed in full the first-instance ruling of April 2, 2024 that dismissed the prescription action brought by Avícola Villalobos, S.A. against Lisa, S.A. The appellate court concluded that Avícola failed to prove the precise moment when its dividend payment obligation became legally enforceable, an indispensable prerequisite for computing the five-year prescription period under Article 1508 of the Civil Code. Avícola Villalobos' attempt to obtain a judicial declaration extinguishing its own obligation to pay dividends to Lisa represents a use of the judicial system aimed at eliminating shareholder rights that the company itself has failed to honor.
Avícola Villalobos, S.A. filed a commercial summary lawsuit (juicio sumario) seeking a declaration that its obligation to pay dividends approved at the Annual General Shareholders' Meeting of May 24, 2012 had been extinguished by prescription. That meeting unanimously approved distribution of profits for the fiscal year January 1 through December 31, 2011, as well as accumulated dividends owed to shareholders. Avícola alleged that more than five years had elapsed since the obligation became enforceable under Article 1508 of the Civil Code, and asserted in its complaint that the funds were available to shareholders from the day after the assembly.
The Twelfth Multi-Judge Civil Court of First Instance of the Department of Guatemala issued its ruling on April 2, 2024 dismissing the claim. The court held that Avícola failed to prove with certainty when the dividend payment obligation became legally enforceable, making it impossible to compute the prescription period. Lisa, S.A. had been declared in default for failing to answer the complaint within the statutory period, and consequently no evidence was admitted on its behalf.
Avícola Villalobos raised two grievances before the Court of Appeals:
First grievance: failure to apply Articles 134 and 154 of the Commercial Code. Avícola argued that the shareholders' meeting of May 24, 2012, which approved the dividend distribution, by itself established the precise moment of enforceability. It contended that Articles 134 and 154 recognize the binding effect of the assembly's decision and that enforceability arose from that date without any requirement that the articles of incorporation or the resolution itself specify the manner or timing of payment. Avícola claimed the trial court erred by demanding an express provision on payment terms when the law already recognized the binding nature of the assembly's decision.
Second grievance: the first-instance judge acted ex officio in violation of Article 70(f) of the Judiciary Act. Avícola claimed the trial court acted on its own initiative to benefit Lisa by deeming insufficient the certificate issued by the Chairman of Avícola's Board of Directors (which stated that Lisa had neither requested dividend payment nor challenged the distribution resolution) and by suggesting that the Judicial Services Center should have provided a report on the absence of lawsuits. Avícola argued this improperly shifted the burden of proof by requiring an additional evidentiary source to prove Lisa's inaction, when it was Lisa's obligation to prove it had taken legal action.
At the hearing, Lisa, S.A. argued that Avícola failed to prove its claims with the evidence presented. The documentary evidence established only that the shareholders' meeting of May 24, 2012 took place, but did not prove a certain start date for the dividend payment obligation or that Lisa was a shareholder of Avícola Villalobos. Lisa noted that Avícola confused the date of the assembly with the moment of enforceability and that the chairman's certificate lacked legal basis by purporting to exercise functions reserved to the Judiciary regarding judicial control of filed lawsuits.
On the first grievance. The Court of Appeals held that the existence of a shareholders' assembly does not, by itself, establish the moment of enforceability of dividend payments. Articles 134 and 154 of the Commercial Code govern the assembly's authority to decide on dividend distribution and the company's obligation to carry out such decisions, but they do not regulate the manner, timing, or conditions under which the right becomes enforceable. The first-instance court acted correctly in examining whether the articles of incorporation or the resolution itself specified when the obligation could be demanded. Without a precise determination of enforceability, the prescription period cannot begin to run under established doctrine and case law. The right to receive dividends recognized in Article 105 of the Commercial Code exists in the abstract, but this does not relieve the claimant of proving when that right became enforceable.
On the second grievance. The Court of Appeals concluded that the trial court did not act ex officio but properly exercised its authority to evaluate evidence under Articles 123 and 128 of the Civil and Commercial Procedure Code. Upon finding that the certificate came from an interested party rather than the authority legally designated to receive lawsuits, the court reasonably concluded that it was insufficient to prove Lisa's procedural inaction. Prescription, as an extinctive defense, requires full proof by the party invoking it. The trial court did not supply evidence on Lisa's behalf or order any evidentiary proceeding ex officio; it simply found that Avícola failed to meet its own burden of proof. A reasoned evaluation of the evidence cannot be characterized as prohibited ex officio conduct.