On January 20, 2020, the Eleventh First Instance Civil Court issued the <doc id="gua-01161-2017-00201-2020-01-20-a" /> granting Lisa, S.A.'s defective claim exception and rejecting the ordinary extinctive prescription lawsuit filed by San José El Recuerdo, S.A., on the ground that the proper procedural track was summary proceedings.
San José El Recuerdo, S.A., a company within the Avícola Villalobos Group, filed an ordinary lawsuit against Lisa, S.A. seeking a declaration of extinctive prescription of the dividends decreed in Lisa's favor at the annual general shareholders' assemblies. Lisa filed five preliminary exceptions, of which the Eleventh First Instance Civil Court granted the defective claim exception in its January 20, 2020 <doc id="gua-01161-2017-00201-2020-01-20-a" />, concluding that the plaintiff's articles of incorporation require disputes between the company and its shareholders to be resolved through summary proceedings, not ordinary proceedings. The ordinary lawsuit was rejected without reaching the evidentiary stage or a ruling on the merits of the prescription claim.
San José El Recuerdo, S.A., a company within the Avícola Villalobos Group, filed an ordinary lawsuit for extinctive prescription against Lisa, S.A., seeking a declaration that the obligation to pay the dividends decreed in Lisa's favor at the annual general shareholders' assemblies had prescribed. The action was admitted by the Eleventh First Instance Civil Court of the Department of Guatemala under case number 01161-2017-00201.
Lisa opposed the claim with five preliminary exceptions: lack of jurisdiction, defective claim, lack of standing, failure of condition, and failure of term. The defective claim exception identified that clause twenty-five of San José El Recuerdo's articles of incorporation requires disputes between the company and its shareholders to be resolved through summary proceedings rather than ordinary proceedings. Lisa further denounced the prescription action as fraude de ley (fraud upon the law): multiple Avícola Group entities had obtained active attachment orders on Lisa's dividends across all group companies, making collection impossible, and the group now sought to declare prescribed the very rights whose exercise it had blocked. San José El Recuerdo itself had requested a precautionary attachment on Lisa's dividends and shares in the ordinary damages lawsuit under case number 01048-2012-00221 before the Seventh First Instance Civil Court, thereby recognizing the rights it now sought to extinguish.
On January 20, 2020, the court issued the <doc id="gua-01161-2017-00201-2020-01-20-a" />, granting the defective claim exception. Applying the principle of pacta sunt servanda under Article 1519 of the Civil Code together with clause twenty-five of the articles of incorporation (public deed number 44, dated June 15, 1983), it held that the proper procedural track was summary proceedings and rejected the ordinary lawsuit. The exceptions for lack of jurisdiction, lack of standing, failure of condition, and failure of term were denied, the court reserving the arguments on interruption of prescription and attachments as substantive matters for final judgment.
The ruling is a procedural victory for Lisa: San José El Recuerdo's attempt to extinguish Lisa's dividend rights through prescription was expelled from the ordinary track without reaching the evidentiary stage or a decision on the merits. Lisa's allegations of fraud upon the law, that the group pursued prescription of dividends whose collection it had itself blocked through attachments, were not resolved on the merits, but they remain in the record and document the Avícola Villalobos Group's pattern of conduct.
The ordinary lawsuit was rejected at the preliminary stage. There is no record of San José El Recuerdo filing a new lawsuit through summary proceedings or appealing the ruling.