The First Civil and Commercial Court of Appeals denied the appeal filed by Avícola Las Margaritas, S.A. in its <doc id="gua-01161-2018-01353-2023-06-21-a" /> of June 21, 2023, affirming the rejection of the extinctive prescription complaint and ordering the plaintiff to pay appellate costs.
Avícola Las Margaritas, S.A. filed an ordinary action for extinctive prescription against Lisa, S.A., seeking a declaration that the obligation to pay dividends owed to Lisa as a 25% equity holder was time-barred. Lisa, S.A. raised preliminary exceptions, and the Eleventh First-Instance Civil Court sustained the defective complaint exception, rejecting the lawsuit on the grounds that the dispute should have been brought as a summary proceeding under the company's articles of incorporation and the Commercial Code. In its <doc id="gua-01161-2018-01353-2023-06-21-a" /> of June 21, 2023, the First Civil and Commercial Court of Appeals affirmed the rejection in full and ordered Avícola Las Margaritas to pay appellate costs, definitively blocking this prescription attempt in the ordinary courts.
Avícola Las Margaritas, S.A. filed an ordinary proceeding against Lisa, S.A. seeking a declaration of extinctive, negative, or liberatory prescription of the obligation to pay dividends owed to Lisa, a 25% equity holder. Lisa, S.A., a Panamanian entity, appeared through a special judicial representative and filed a jurisdiction challenge (declinatoria de competencia), which was rejected on April 8, 2019, followed by five preliminary exceptions: lack of jurisdiction, defective complaint, lack of standing of the plaintiff, failure to comply with a condition precedent, and failure to comply with a time requirement.
By order of August 25, 2022, the Eleventh First-Instance Civil Court denied four exceptions and sustained the defective complaint exception. The court found that Avícola Las Margaritas' articles of incorporation (public deed number 24, executed on February 22, 1993) require shareholder disputes to be resolved in summary proceedings, and that Article 1039 of the Commercial Code confirms that procedural track. The complaint, filed as an ordinary proceeding, lacked congruence between its factual allegations and its legal basis.
On June 21, 2023, the First Civil and Commercial Court of Appeals issued its <doc id="gua-01161-2018-01353-2023-06-21-a" />, declaring the appeal without merit. The Court identified two independent bases requiring summary proceedings: the company's own articles of incorporation and Article 1039 of the Commercial Code, read together with Article 229, paragraph six, of the Civil and Commercial Procedure Code. It affirmed the appealed order and ordered Avícola Las Margaritas to pay appellate costs. The rejection prevents Avícola Las Margaritas from extinguishing by prescription, through the ordinary procedural track, the dividends owed to Lisa, S.A.
At first instance, Lisa, S.A. invoked the existence of precautionary embargoes decreed on its shares and dividends in Avícola Las Margaritas across multiple proceedings brought against it, as grounds for interruption of the prescriptive period. The trial court did not resolve this point, deeming it a matter of substance, and the Court of Appeals did not address it in confirming the procedural rejection.
The pattern is significant. The same entity that obtained embargoes on Lisa, S.A.'s dividends and shares, preventing their collection, simultaneously filed this extinctive prescription action seeking to declare those same dividend obligations time-barred. Embargoing dividends to prevent collection and then arguing prescription for failure to collect is consistent with the weaponization of the legal system to extinguish Lisa's shareholder rights. The record also reflects a summary proceeding challenging Lisa, S.A.'s exclusion as shareholder and an ordinary damages suit filed by Avícola Las Margaritas, placing this prescription action within a coordinated set of legal proceedings against Lisa, S.A.
The case is resolved. The extinctive prescription complaint was rejected as defective at first instance and affirmed on appeal, closing this avenue in the ordinary courts.