Dismisses Avícola Villalobos damages claim against Lisa, finding shareholder rights exercise is not actionable
Jul 4 2023
13th Civil Court
The Thirteenth Pluripersonal Civil Court of First Instance of Guatemala City issued its judgment on July 4, 2023, in the summary mercantile proceeding for damages (Case No. 01163-2012-00178), dismissing Avícola Villalobos, S.A.'s complaint against Lisa, S.A. in its entirety. Avícola Villalobos sought Q94,410,079.60 in determined patrimonial damages, plus undetermined personal damages, future patrimonial damages, and lost profits subject to generic condemnation, alleging that Lisa had committed wrongful acts that founded its exclusion as a shareholder. The court found that Avícola Villalobos failed to prove that Lisa directly caused the alleged damages or that Lisa's exercise of judicial and extrajudicial remedies constituted a source of compensable harm.
Avícola Villalobos, S.A. filed its damages complaint in 2012, seeking compensation for harm allegedly caused by the acts that led to Lisa, S.A.'s exclusion as a shareholder, resolved by the General Shareholders' Assembly on April 4, 2011. The exclusion was based on a series of wrongful acts attributed to Lisa through its ultimate beneficiaries, Juan Arturo Gutiérrez Gutiérrez and Juan Guillermo Gutiérrez Strauss, who allegedly channeled funds through an arrangement involving Xela Enterprises Ltd., Fresh Quest Inc., and Boucheron Universal Corp. to finance defamation campaigns, media publications, and litigation against the Avícola Villalobos Group. The case was decided more than eleven years after filing.
Lisa, S.A. was represented by its Special Judicial Agent with Power of Representation Paola Arana Estrada. Avícola Villalobos, S.A. acted through its General Judicial and Administrative Agent with Power of Representation Elmar Baldemar Ambrocio Mazariegos.
Avícola Villalobos claimed five categories of damages: (a) present and future personal damages consisting of commercial reputational harm, subject to generic condemnation; (b) determined patrimonial damages of Q94,410,079.60, representing legal fees and defense costs incurred between February 3, 1999, and December 31, 2011, per its own accounting certification; (c) undetermined patrimonial damages for commercial discredit; (d) future patrimonial damages; and (e) consequential lost profits across all categories.
The alleged wrongful acts included the notarial declaration of Mario Adolfo del Águila Cancinos in Miami (1999), media campaigns on Radio 10 and in the magazines "Y qué?" and "La Razón," demonstrations organized by the UASP labor union against the Attorney General, and multiple domestic and international lawsuits filed by Lisa or persons associated with it.
Lisa, S.A. filed a negative answer and raised seven peremptory exceptions. The core of its defense was that all judicial and extrajudicial actions characterized as harmful constituted the legitimate exercise of its rights as a minority shareholder in the face of prolonged non-payment of dividends by the Avícola Villalobos Group.
Lisa presented evidence of the dividends owed. The certification by accountant Lawrence Sidney Rosen (May 24, 2012) established that twenty-five entities in the Avícola Villalobos Group had not paid dividends since the fiscal year ending June 30, 1999, with an annual payment of $5,481,851.00. The economic study of February 2015 valued Lisa's shares in the Avícola Villalobos Group at $518,090,865.00, unpaid dividends at $121,160,156.00, for a combined total of $639,251,021.00 (approximately Q4,986,157,963.80).
Lisa also invoked the Bermuda Supreme Court judgment of September 5, 2008, which condemned Leamington Reinsurance Company Ltd. to pay $1,954,104.14 for having been used as a vehicle to defraud Lisa. That judgment cited the expert report of William Lozada, the Avícola Villalobos Group's own expert, who acknowledged the existence of an off-the-books accounting system.
Of the twenty-seven documentary exhibits and two party depositions offered, the court granted probative value to only two documents: (a) the February 2015 economic study prepared by Lisa, S.A., which demonstrated the value of shares and retained dividends; and (b) the certified copy of the complaint filed by Margarita Gutiérrez Strauss de Castillo in Ontario, Canada, which proved only the filing of that complaint without establishing its outcome. The remaining documents were denied probative value as they related primarily to the grounds for Lisa's exclusion, which was not the subject matter of the proceeding. The party depositions also received no probative value as they contained no admissions.
Lack of veracity in the alleged facts. The court sustained this exception, finding that exercising legal actions to obtain dividend payments does not in itself constitute grounds for a damages claim, regardless of the outcome of those actions. The shareholder exclusion involved a separate proceeding from the present case.
Non-existence of the claimed damages. Sustained. The court reasoned that free access to the courts to assert rights, guaranteed by Article 29 of the Constitution, does not necessarily result in compensable harm. While the Commercial Code provides for an excluded shareholder's liability, such claims must be proven with pertinent evidence, which did not occur.
Improcedence of damages for acts of third parties. Sustained. The court found that the acts alleged (Del Águila Cancinos's declaration, Radio 10 campaigns, magazine publications, UASP demonstrations) were performed by persons other than Lisa, S.A., and Avícola Villalobos failed to prove that Lisa or its legal representative was the direct author of those acts.
Extinction of the right to claim damages. Denied. The court did not elaborate on this exception in its dispositional section, implicitly dismissing it as the case was resolved on other grounds.
Lack of standing of the plaintiff and defendant to claim and pay damages. The plaintiff's standing exception was denied, as Lisa's arguments addressed the failure to specify damages rather than Avícola Villalobos's procedural capacity. The defendant's standing exception was also denied as it had been previously resolved at the preliminary exceptions stage.
Lack of legal representation in the plaintiff. Denied. Lisa alleged that Avícola Villalobos's agent, Lcdo. Juan Luis Aguilar Salguero, was legally impeded from acting. The court found no final judgment establishing such impediment.
The court concluded that Avícola Villalobos failed to meet its burden of proof under Article 126 of the Code of Civil and Mercantile Procedure. The documentary evidence did not establish that Lisa, S.A. caused the damages attributed to it. The complaint by Margarita Gutiérrez Strauss de Castillo in Canada, presented as the centerpiece of the case, proved only its filing, without a final judgment that would allow the alleged damages to be established. Media publications and declarations were not linked to Lisa as their direct author. The claimed lost profits were not individualized, preventing the court from issuing a congruent judgment.
The court validated Lisa's position that the non-payment of dividends motivated its exercise of judicial and extrajudicial remedies, and that such exercise does not constitute a source of compensable damages.
Avícola Villalobos, S.A. filed a motion for clarification and expansion of this judgment, which was denied in full by order of November 2, 2023. The Civil and Commercial Appeals Court subsequently upheld both the judgment and the denial of clarification in its appellate ruling of July 16, 2024. Avícola Villalobos filed a cassation appeal on November 20, 2024, to which Lisa, S.A. responded by memorial of August 11, 2025.