Exp. 01161-2018-01246 · Ordinary Action for Extinctive Prescription
On December 3, 2020, the Eleventh First Instance Civil Court granted Lisa, S.A.'s motion for revocation, nullified the admission of Escobio, S.A.'s ordinary dividend prescription claim, and rejected it from ordinary proceedings, ruling that the dispute must proceed through summary commercial trial.
Escobio, S.A. filed an ordinary claim against Lisa, S.A. seeking a declaration that the obligation to pay dividends decreed in annual general shareholder assemblies held between 2006 and 2011 had prescribed. Lisa challenged the admission of the claim through a motion for revocation, arguing that the dispute, being commercial in nature between two corporations, must proceed through summary trial under Article 1039 of the Commercial Code. The Eleventh First Instance Civil Court granted the revocation, nullified the admission, and rejected the claim from ordinary proceedings. This was Escobio's second attempt to obtain a prescription declaration over the same dividends through ordinary proceedings, having been previously rejected by the Fourteenth First Instance Civil Court in Proceeding No. 01164-2017-00228.
The Eleventh First Instance Civil Court granted Lisa, S.A.'s motion for revocation and nullified the November 6, 2018 resolution that had admitted Escobio, S.A.'s ordinary claim for extinctive prescription of dividends. The court held that a dispute between two commercial entities over dividends decreed in shareholder assemblies must proceed through summary commercial trial under Article 1039 of the Commercial Code.
Escobio sought a declaration that the obligation to pay dividends had prescribed. The dividends at issue originated from distribution resolutions adopted by the annual general shareholder assembly on November 6, 2006, August 25, 2008, December 16, 2009, April 28, 2010, and April 4, 2011. This was not Escobio's first attempt: Lisa established that Escobio had filed an identical claim before the Fourteenth First Instance Civil Court, where the judge had already granted Lisa's motion for revocation and ruled that ordinary proceedings were not the proper route, a resolution that was final and binding. The filing of this second claim was made in contempt of the Fourteenth Court's ruling.
Lisa further argued that Escobio maliciously omitted the articles of incorporation (escritura constitutiva) of Escobio, S.A., a foundational document for the claim that contains the express submission clause to summary proceedings and governs the form, method, timing, and manner of dividend distribution.
The court concluded that the claim arises from the exercise of a corporate right by the plaintiff as shareholder, reinforcing its commercial nature and the mandatory application of summary proceedings. The claim was rejected for failure to comply with Articles 61(6) and 106 of the Civil and Commercial Procedural Code.
The ruling consolidated Lisa's defense against Escobio's repeated attempts to use ordinary proceedings to obtain a prescription declaration over dividends that Lisa is entitled to collect. The rejection of the claim for a second time by a different court evidences a pattern of abusive litigation aimed at extinguishing dividend payment obligations through the deliberate selection of an improper procedural route.
| Date | Document | Issued by |
|---|---|---|
| Dec 3 2020 | Order | 11th Civil Court |
The ordinary prescription claim was rejected. If Escobio seeks to reiterate its extinctive prescription claim over dividends, it must do so through summary commercial trial under Article 1039 of the Commercial Code.