Exp. 01161-2018-01334

I. First Instance

Administradora de Restaurantes, S.A. (successor by merger of Compañía Importadora La Perla, S.A.) filed an ordinary prescription action against Lisa, S.A., seeking a judicial declaration that the obligation to pay dividends decreed at La Perla's Annual General Shareholders' Assembly of May 28, 2013, which approved distribution of profits for fiscal year 2012 along with accumulated profits, had been extinguished by prescription. The complaint was filed in November 2018 and admitted on November 19 of that year. The plaintiff attached only a certified excerpt of a single agenda item from the assembly, without the complete minutes, the published convocations, or proof of quorum.

Lisa appeared on January 29, 2019 and filed five preliminary exceptions: incompetence, defective complaint, lack of standing in the plaintiff, unfulfilled condition, and unfulfilled term. Lisa argued that the complaint lacked the foundational documents required by Articles 106, 107, and 109 of the Civil Procedure Code, that it failed to establish the amount or form of payment of the dividends whose prescription was sought, and that clause twenty-eight of La Perla's articles of incorporation designates arbitration as the forum for resolving disputes. Lisa further argued that the same Avícola Group entities that had obtained embargo orders on its dividends and shares in proceedings <law id="gua-01045-2012-00242" />, <law id="gua-01045-2012-00210" />, and <law id="gua-01044-2012-00279" /> were now seeking to declare that very right prescribed, in what it characterized as a manifest fraud upon the law.

On August 4, 2023, more than four years after the exceptions were filed, the Eleventh Civil Court issued its first-instance <doc id="gua-01161-2018-01334-2023-08-04-a" />, sustaining the defective complaint exception on two grounds: the plaintiff attached only a partial certification of one agenda item without the complete assembly minutes, and the complaint made no reference to the arbitration clause in the articles of incorporation. The exceptions for incompetence, lack of standing, unfulfilled condition, and unfulfilled term were denied, the complaint was rejected for processing, and costs were assessed against the plaintiff. The action fits the Avícola Group's broader pattern of using the legal system to keep Lisa from collecting the dividends owed to it as holder of 25% of La Perla's equity: the same entity that decreed the 2013 distributions, and that embargoed Lisa's dividends in related proceedings, brought this action to declare Lisa's right to those very dividends extinguished.

II. Appeal

The First Chamber of the Civil and Commercial Court of Appeals heard Administradora de Restaurantes' appeal, which raised a single grievance: that the trial judge misinterpreted Article 107 of the Civil Procedure Code by requiring the complete assembly minutes as a foundational document. The appellant argued that the sole purpose of the lawsuit was to determine whether the five-year prescription period had elapsed, and that quorum, individual dividend amounts, and shareholder identities were not contested facts. In its <doc id="gua-01161-2018-01334-2024-05-06-a" /> of May 6, 2024, the Chamber confirmed the first-instance decision in full, holding that the plaintiff was required to comply with all requirements of Articles 106 and 107, either by attaching the foundational documents or by identifying them with particularity and designating the archive where the originals could be found. The plaintiff did neither, the appeal was denied, and costs were assessed against the appellant.

Administradora then filed clarification and extension remedies against the appellate ruling, reiterating in the clarification request that the certified agenda excerpt was sufficient to support the claim, and arguing in the extension request that the Chamber should have ruled on the incompetence exception tied to the arbitration clause, citing an alleged contradiction between the denial of that exception and the sustaining of the defective complaint exception based on the same clause. Lisa responded that the clarification merely restated grievances already resolved and that the contradiction was attributable to Administradora itself, which had argued on appeal that the arbitration clause was inapplicable. In its <doc id="gua-01161-2018-01334-2024-08-06-a" /> of August 6, 2024, the Chamber denied both remedies, characterizing the extension argument as fallacious and noting that Administradora's own counsel had contradicted herself across procedural stages by first arguing that the arbitration clause was inapplicable and then that the incompetence exception should have been sustained on the basis of that same clause. The dismissal of the lawsuit was confirmed in full.

III. Cassation

Administradora de Restaurantes carried the matter to the Civil Chamber of the Supreme Court, which, in its <doc id="gua-01161-2018-01334-2025-03-17-a" /> of March 17, 2025, summarily rejected the cassation appeal. The Court determined that the challenged resolution lacked objective appealability: under Article 620 of the Civil Procedure Code, a resolution confirming a defective complaint exception does not prevent renewal of the litigation, which deprives it of the definitiveness required for cassation review. Administradora formally retains the ability to correct the identified defects and file a new complaint, but the rejection across all three instances confirms that the procedural approach lacked an adequate legal foundation.

The cassation proceedings were ordered archived, leaving the dismissal of the lawsuit final.

The outcome across all three instances is significant within the Avícola Group's strategy of using prescription actions to extinguish Lisa's shareholder rights. The complaint sought to declare prescribed the dividend rights that the plaintiff entity itself, through its predecessor La Perla, was obligated to pay Lisa as holder of 25% of the equity. Lisa's rights to the dividends decreed at the May 2013 assembly remain in force.