Denies motion to revoke BDT's admission as Lisa's co-party
Apr 19 2024
12th Civil Court
The Twelfth Civil Court of First Instance denied the motion for revocation filed by Reproductores Avícolas, S.A. against the March 20, 2024 order that admitted BDT Investments Inc. as a third-party co-defendant supporting Lisa, S.A. in the summary proceeding for extinctive prescription of dividends. The court concluded that BDT's provisional admission did not violate the plaintiff's rights and that the definitive determination of the third-party intervention's merits must be resolved in the final judgment together with the principal matter.
This proceeding is conducted as a summary action for extinctive prescription, linked to the main proceeding under file 01162-2017-00735. Reproductores Avícolas, S.A. is the plaintiff and Lisa, S.A. the defendant. The case was in its evidentiary phase, with expert reports still pending, when on March 20, 2024, BDT Investments Inc. requested admission as a third-party co-defendant supporting Lisa. Through an order of that same date, the court granted the request based on the Transaction Agreement between BDT and Lisa, admitting BDT to the proceeding in its current state.
Reproductores Avícolas filed its motion for revocation within the 24-hour period established by Article 598 of the Code of Civil and Commercial Procedure. The challenge focused on BDT's alleged lack of a "certain and own interest" in the matter, arguing that the Transaction Agreement did not transfer all of Lisa's rights and obligations but only those related to "obtaining profits and agreements pending payment in favor of the entities comprising Grupo Avícola," and that Reproductores Avícolas does not identify as part of that group. Additionally, the movant argued that the assignment of rights for $19,184,680.00 should have triggered Value Added Tax payment to take effect in Guatemala, that the notary lacked authority to protocolize the document under Article 63 of the Notarial Code, and that the subject matter of the proceeding is the loss of a right through prescription, not the payment of dividends.
The court confirmed the motion was timely filed. On the merits, the court determined that the challenged order admitted BDT only as a third-party co-defendant, without having resolved to substitute Lisa, S.A., as the movant claimed. The central basis for the decision rested on Article 551 of the Code of Civil and Commercial Procedure, which provides that third-party interventions filed in non-execution proceedings shall be resolved together with the principal matter in the final judgment, with the court ruling on the merits of the intervention at that time.
"Aunque la recurrente hace señalamientos respecto del impago de impuestos, es claro que será hasta dictar sentencia y junto al asunto principal, que este Juzgado haga su pronunciamiento sobre la existencia de un interés propio y cierto de la entidad BDT INVESTMENTS INC dentro del presente juicio sumario y declarar la procedencia o no de la tercería instada." (Page 6)
The court concluded that admitting the third-party intervention did not violate any of the plaintiff's rights, since the substantive determination of BDT's interest is deferred to the judgment on the merits.