Appeal Ruling

The First Civil and Commercial Court of Appeals (Sala Primera de la Corte de Apelaciones del Ramo Civil y Mercantil) upheld, in a ruling dated May 7, 2024, the dismissal of the damages lawsuit filed by Avicola Villalobos, S.A. against Lisa, S.A. The court concluded that, while Article 228 of the Commercial Code provides that an excluded partner must answer for the damages that caused the exclusion, Avicola Villalobos failed to prove the existence of any concrete damages or to present sufficient evidence for a court to order expert quantification. This ruling marks the second consecutive defeat for Avicola Villalobos in its attempt to weaponize Lisa's exclusion as the basis for a damages claim, in a proceeding where the exclusion itself was the mechanism through which the Avicola Group stripped Lisa of its shareholder rights.

Case Background

Avicola Villalobos, S.A. sued Lisa, S.A. in a summary commercial proceeding seeking damages allegedly arising from conduct that, according to the plaintiff, motivated Lisa's exclusion as a shareholder. The exclusion was approved at a general shareholders' meeting on April 4, 2011, and became final when Lisa did not challenge it within the statutory period under Article 227 of the Commercial Code.

The plaintiff alleged that Lisa committed tortious acts consisting of: (a) filing lawsuits in multiple foreign jurisdictions against the Avicola Group, and (b) participating in a media defamation campaign. The claim sought $94,410,079.60 in determined patrimonial damages, plus generic condemnations for personal damages, undetermined patrimonial damages, future damages, and lost profits, requesting that quantification be fixed through an expert procedure under Article 150 of the Organic Law of the Judiciary.

Lisa denied the claims, asserting that it had been excluded from twenty-two entities of the Avicola Villalobos Group, that it had received no dividend payments since 2000, and that its legal actions were a direct response to the non-payment of those dividends. Lisa raised peremptory defenses of lack of veracity in the alleged facts, non-existence of the claimed damages, extinction of the right to claim, lack of standing, and inapplicability of damages for acts of third parties.

The Thirteenth Civil Court of First Instance, in its ruling of July 4, 2023, sustained three of Lisa's peremptory defenses (lack of veracity, non-existence of damages, and inapplicability for third-party acts), dismissed the lawsuit, and imposed costs on Avicola Villalobos. Avicola Villalobos sought clarification and expansion of the judgment, which was denied on November 2, 2023.

Grievances Raised by Appellant

Avicola Villalobos argued that the trial court erred in its evidentiary assessment by failing to recognize that Lisa's final exclusion, under Article 228 of the Commercial Code, creates an automatic obligation to respond for damages without requiring proof of their concrete existence within the proceeding.

Court's Analysis

The court structured its analysis across three evidentiary levels: proof of the acts that caused the exclusion, proof of responsibility, and proof of concrete damages.

Acts underlying the exclusion. The court found it established that Lisa was excluded as a shareholder on April 4, 2011, based on: (a) legal actions filed in foreign jurisdictions against Avicola Villalobos, and (b) alleged participation in a defamation campaign. The documentary evidence established that Lisa participated in legal proceedings in Bermuda, Panama, and the United States. The Bermuda Supreme Court judgment of September 5, 2008, in proceedings brought by Lisa against Leamington Reinsurance Company, Ltd. and Avicola Villalobos, was part of the record.

Defamation campaign. The court determined that the media publications and actions documented in the record were driven, financed, and executed by individuals unrelated to Lisa or connected to it only indirectly, and that it could not be established that these individuals acted as legal representatives of Lisa. The only evidence linking Lisa to payments to third parties was the lawsuit filed by Margarita Gutierrez Strauss de Castillo against Juan Arturo Gutierrez Gutierrez and Juan Guillermo Gutierrez Strauss and their companies, which concerned the joint administration of businesses and did not establish that payments were made on Lisa's behalf.

Proof of damages. The court concluded that Avicola Villalobos presented no evidence whatsoever of concrete damages. Regarding litigation costs, the court noted that expenses incurred in judicial proceedings are classified as court costs (costas) and must be liquidated in each specific case, meaning that the mere exercise of a legal right does not by itself generate actionable damages. Regarding reputational harm, the record contained no evidence of actual harm to the plaintiff's reputation or of business opportunities lost due to the defendant's conduct. The court confirmed that proof of the existence of damages is an indispensable prerequisite for imposing a condemnation, even when quantification is deferred to an expert procedure.

"no basta con comprobar los aspectos anteriores para acceder a la pretensión de la parte actora, pues para condenar al pago de los daños y perjuicios se debe considerar el impacto que, tanto las acciones legales como la supuesta campaña de desprestigio, generaron sobre el patrimonio y la reputación de la parte actora" (Page 28)

Ruling

• The appeal filed by Avicola Villalobos, S.A. against the judgment of July 4, 2023, was denied
• The first-instance judgment of the Thirteenth Civil Court of First Instance was affirmed
• No costs were imposed on the appellant in the second instance

Legal Basis

• Article 228, Commercial Code — Obligation of the excluded partner to answer for damages arising from the acts that caused the exclusion
• Article 1645, Civil Code — Obligation to repair damages caused intentionally or negligently
• Article 1434, Civil Code — Definition of damages as patrimonial losses and lost profits as lawful gains no longer received
• Article 1648, Civil Code — Presumption of fault, with the injured party bearing the burden of proving damage suffered
• Article 126, Code of Civil and Commercial Procedure — Burden of proof: the party asserting a claim must prove the constitutive facts of its claim
• Article 150, Organic Law of the Judiciary — Expert quantification procedure, applicable only when the existence of damage has been established
• Article 603, Code of Civil and Commercial Procedure — Limits of appeal: the appellate court may only consider matters unfavorable to the appellant that were expressly challenged

Signatories

• Wilber Estuardo Castellanos Venegas, Presiding Magistrate
• Rosa Orellana Arevalo, Magistrate, Second Vote
• Gardenia Enedina de la Maza Castellanos, Magistrate
• Brenda Maribel Monroy Loyo, Clerk

Subsequent Proceedings

Avicola Villalobos filed a cassation appeal on November 20, 2024, alleging misapplication of law and erroneous assessment of evidence. Lisa filed its opposition to the cassation appeal on August 11, 2025. The case remains pending before the Supreme Court of Justice.