Court denies Reproductores Avícolas' revocatoria, upholds BDT's admission as Lisa's co-defendant
Apr 19 2024
12th Civil Court
The Twelfth Civil Court of First Instance denied the motion for revocatoria filed by Reproductores Avícolas, S.A. challenging the March 20, 2024 order that admitted BDT Investments Inc. as a third-party co-defendant (tercero coadyuvante) of Lisa, S.A. in Proceeding No. 01162-2017-00735. The ruling preserves BDT's participation in a proceeding whose stated purpose is to declare prescribed Lisa's right to collect dividends, an attempt to judicially extinguish the dividend payment obligation that Reproductores Avícolas owes to its shareholder.
This summary proceeding was filed by Reproductores Avícolas, S.A. against Lisa, S.A. seeking a declaration that Lisa's right to collect dividends had prescribed due to the passage of more than five years without a claim. On March 20, 2024, BDT Investments Inc. requested admission as a third-party co-defendant supporting Lisa, submitting a Transaction Agreement between BDT and Lisa under which Lisa assigned and transferred to BDT rights and obligations related to the disputes with the Avícola group of companies, for a value of $19,184,680.00. The court admitted BDT on the same date through the March 20, 2024 order.
Reproductores Avícolas challenged BDT's admission on multiple grounds: that BDT failed to demonstrate a certain and proper interest in the matter; that the Transaction Agreement only assigned rights related to "Grupo Avícola" and did not specifically name Reproductores Avícolas or reference this proceeding; that BDT did not prove ownership of Lisa's shares; that the notarial protocolization of the document was defective under Article 63 of the Notarial Code; and that the assignment of rights for $19,184,680.00 did not comply with Value Added Tax obligations, which, according to Reproductores, rendered it ineffective in Guatemala.
The court confirmed that the motion was filed within the time limit established by Article 598 of the Civil and Commercial Procedure Code. On the merits, the court identified two grounds for denial.
No prejudice to the plaintiff. The court did not substitute Lisa with BDT, as Reproductores alleged, but rather admitted a third-party co-defendant, a procedural figure that does not alter the plaintiff's position or infringe upon its rights.
Deferred ruling on the merits. 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 court determined that it will be in the final judgment where it rules on whether BDT has a proper and certain interest and on the propriety of the intervention. Reproductores' objections regarding documentary defects and tax non-compliance will likewise be evaluated at that stage.
"Siendo que, al dictar la resolución recurrida y al haber admitido para su trámite la tercería coadyuvante en mención, no se ha vulnerado ningún derecho a la parte actora, ya que de conformidad con lo regulado en el Artículo 551 del Código Procesal Civil y Mercantil: 'las tercerías, de la clase que sean, planteadas en procesos que no sean de ejecución, se resolverán juntamente con el asunto principal, en sentencia'" (Page 5)
The procedural context reveals a significant dynamic: Reproductores Avícolas, an entity within the Avícola Villalobos group, brings a summary proceeding to declare Lisa's dividend rights prescribed while simultaneously challenging the participation of BDT, the entity that acquired Lisa's rights in those very disputes. Reproductores itself acknowledges in its motion that the subject of this 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 attempt to exclude from the proceeding the entity that acquired Lisa's rights for $19,184,680.00 reinforces BDT's participation as a defense mechanism against the strategy to extinguish the dividend obligation.