On April 19, 2024, the Twelfth Civil Court of First Instance issued <doc id="gua-01162-2017-00735-2024-04-19-a" />, denying the revocatoria motion filed by Reproductores Avícolas, S.A. challenging the admission of BDT Investments Inc. as a third-party co-litigant supporting Lisa, S.A., and confirming BDT's participation in the proceeding.
Reproductores Avícolas, S.A. filed a commercial summary proceeding against Lisa, S.A. before Guatemala's Twelfth Civil Court of First Instance, seeking a declaration that Lisa's right to collect dividends had prescribed through the passage of more than five years without a claim. In 2024, BDT Investments Inc., assignee of Lisa's rights under a Transaction Agreement valued at $19,184,680.00, sought admission as a third-party co-litigant supporting the defendant. Through its <doc id="gua-01162-2017-00735-2024-03-20-a" /> of March 20, 2024 the court admitted BDT, and in its <doc id="gua-01162-2017-00735-2024-04-19-a" /> of April 19, 2024 it denied the revocatoria motion filed by Reproductores Avícolas challenging the admission, holding that the propriety of the third-party intervention must be resolved in the final judgment together with the principal matter. The substantive issues regarding prescription of dividends owed to Lisa remain pending.
On March 20, 2024, the Twelfth Civil Court of First Instance issued <doc id="gua-01162-2017-00735-2024-03-20-a" />, admitting BDT Investments Inc. as a third-party co-litigant (tercero coadyuvante) supporting Lisa, S.A. in the summary proceeding brought by Reproductores Avícolas, S.A. to declare Lisa's right to collect dividends extinguished by prescription. BDT submitted a Transaction Agreement with Lisa under which Lisa assigned and transferred to BDT the rights and obligations arising from the disputes with the Avícola group of companies, for a value of $19,184,680.00. The court recognized BDT's special judicial agent, admitted its participation in the proceeding in its current state, and noted the evidence offered. BDT's intervention strengthens Lisa's procedural position in a lawsuit whose stated purpose forms part of the Avícola Group's pattern of legal actions aimed at extinguishing the obligations owed to Lisa as a shareholder.
Reproductores Avícolas, S.A. challenged the admission through a revocatoria motion, which the court denied on April 19, 2024 in <doc id="gua-01162-2017-00735-2024-04-19-a" />. Reproductores argued that BDT had not demonstrated a certain and proper interest, that the Transaction Agreement assigned only rights related to "Grupo Avícola" without naming Reproductores Avícolas or referencing this proceeding, that BDT had not proven ownership of Lisa's shares, that the notarial protocolization was defective under Article 63 of the Notarial Code, and that the assignment of rights for $19,184,680.00 failed to comply with Value Added Tax obligations.
The court declared the revocatoria without merit on two grounds. First, admitting a third-party co-litigant does not substitute the defendant or alter the plaintiff's procedural position, so no prejudice exists. Second, under Article 551 of the Civil and Commercial Procedure Code, third-party interventions in non-execution proceedings are resolved together with the principal matter in the final judgment; the objections regarding documentary defects and tax non-compliance, as well as whether BDT holds a proper and certain interest, will be evaluated at that stage.
The procedural posture exposes a contradiction in Reproductores' conduct: it prosecutes a proceeding to declare Lisa's dividend rights prescribed while simultaneously seeking to exclude the very entity that acquired those rights for $19,184,680.00. Reproductores itself acknowledges that the subject of the lawsuit is "the loss of a right by Lisa, S.A., that is, the payment of dividends due to the passage of more than five years without a claim." The confirmation of BDT's participation preserves the defense against this strategy to extinguish the dividend obligation.
The summary proceeding on dividend prescription remains pending final judgment, in which the court must rule on both the merits of the prescription claim and the propriety of BDT Investments Inc.'s third-party intervention.