Sustains defective-complaint exception, rejects La Perla dividend prescription action for processing
Aug 4 2023
11th Civil Court
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 the distribution of profits for fiscal year 2012 as well as accumulated profits in favor of the shareholders, had been extinguished by prescription. Lisa filed five preliminary exceptions. The court sustained the defective-complaint exception and rejected the complaint for processing, blocking the prescription action from reaching the merits. The remaining four exceptions were denied.
The complaint was filed in November 2018 by Compañía Importadora La Perla, S.A. (later merged into Administradora de Restaurantes, S.A.), with Lisa, S.A. served a nine-day summons. Lisa appeared on January 29, 2019 and filed the five preliminary exceptions. The incident was admitted on March 1, 2019, the evidentiary period opened on July 16, 2019, and the ruling was issued on August 4, 2023, more than four years after the exceptions were filed.
This action fits within a broader pattern of the Avícola Group's use of the legal system to prevent Lisa from collecting dividends owed to it as a 25% shareholder of La Perla. The same entity that decreed dividend distributions at the 2013 assembly, and that obtained embargo orders on Lisa's dividends and shares in related proceedings, filed this action to declare Lisa's right to collect those very dividends extinguished by prescription. Lisa characterized this conduct as a manifest fraud upon the law.
Administradora de Restaurantes sought a declaration that the negative or liberatory extinctive prescription, exercised as an action, had extinguished the obligation to pay Lisa the dividends decreed at the May 2013 assembly. The plaintiff argued that Lisa never appeared to collect the dividends and that the five-year general prescription period had elapsed without interruption. The plaintiff attached only a certification of the extract of agenda item seven, point eight, of the assembly, without the complete assembly minutes or supporting documentation.
Lisa filed five preliminary exceptions, each with independent grounds:
Incompetence. Lisa argued that as an entity incorporated under the laws of Panama with no domicile in Guatemala, the court lacked territorial jurisdiction under Article 12 of the Code of Civil and Commercial Procedure.
Defective complaint. Lisa argued that the plaintiff failed to attach the foundational documents required by Articles 106, 107, and 109 of the Code of Civil and Commercial Procedure. The complaint did not clearly state the amount of the obligation whose prescription was sought, nor the timing and form of payment. The plaintiff omitted the complete assembly minutes, the published notices of convocation required by Article 138 of the Commercial Code, and proof of quorum. Lisa also argued that clause twenty-eight of La Perla's articles of incorporation establishes arbitration as the forum for any dispute, and the complaint should have been rejected for not following the agreed-upon procedural avenue.
Lack of standing in the plaintiff. Lisa argued that the plaintiff's general judicial agent lacked authority to bring an action constituting an act of disposition, as the power of attorney required prior written authorization from the Board of Directors for acts of disposition or acknowledgment of obligations, which was not attached. Lisa further argued that the decision to suppress a shareholder's rights falls within the exclusive competence of the general assembly, not a judicial agent, under Articles 132, 137, 149, and 155 of the Commercial Code.
Unfulfilled condition. Lisa argued that suppressing a shareholder's right to collect dividends required a prior resolution by the general assembly with the qualified majorities of Article 149 of the Commercial Code and the affected shareholder's consent under Article 155. Lisa also demonstrated that it had in fact requested payment of dividends through a letter dated February 28, 2017, contradicting the plaintiff's premise that Lisa never sought collection.
Unfulfilled term. Lisa argued that prescription had been interrupted on two grounds. First, the plaintiff itself resolved in 2011 to exclude Lisa as a shareholder and instructed the administration to liquidate Lisa's share, expressly acknowledging Lisa's rights without raising any prescription defense. Lisa opposed that exclusion through the summary opposition proceeding. Second, Avícola Group entities obtained and executed embargo orders on Lisa's dividends and shares in multiple proceedings, including cases 01045-2012-00242, 01045-2012-00210, and 01044-2012-00279, preventing Lisa from collecting its dividends. Lisa argued that the same entities that embargoed its dividends were now seeking to declare the right prescribed, in what it characterized as a manifest fraud upon the law to consummate the appropriation of what belongs to Lisa.
On incompetence. The court found Guatemalan courts competent under Articles 33 and 34 of the Judiciary Act, as the action relates to legal acts performed in Guatemala: the dividends originated from a distribution resolution of a company incorporated under Guatemalan law with its seat in Guatemala. The court cited Constitutional Court precedent in cases 1161-2004, 3754-2010, and 432-2012.
On defective complaint. The court sustained this exception on two grounds. First, the plaintiff attached only a certification of the extract of the assembly agenda item, without the complete minutes, making it impossible to verify the amount of dividends, the date from which they were available to Lisa, the quorum, and the other circumstances of the assembly. Second, La Perla's articles of incorporation establish in clause twenty-eight that any dispute between the parties shall be resolved by arbitration, and the plaintiff made no reference to this circumstance in the factual section of the complaint. The court concluded that the complaint failed to meet the requirements of Articles 61, 106, and 107 of the Code of Civil and Commercial Procedure.
On lack of standing. The court verified that the general judicial power of attorney complied with Article 45 of the Code of Civil and Commercial Procedure and was duly registered with the General Archive of Protocols, and thus the representation was sufficient. The exception was denied.
On unfulfilled condition and unfulfilled term. The court determined that both exceptions raised merits-stage issues that must be resolved at judgment, not at the preliminary-exception stage. The interruption of prescription by embargoes and the exclusion, as well as the demand for payment submitted by Lisa, were circumstances pertaining to the substance of the dispute. Both exceptions were denied.
Administradora de Restaurantes, S.A. appealed the order. The appellate ruling of May 6, 2024, issued by the First Chamber of the Court of Appeals, Civil and Commercial Branch, denied the appeal and affirmed the first-instance order, concluding that the plaintiff failed to attach the foundational documents and that the claimed grievance was not established. Costs were imposed on the appellant. Administradora filed a request for clarification and amplification, which was rejected on August 6, 2024. Administradora then filed a cassation appeal, which was rejected on March 17, 2025.