Exp. 01163-2017-00184 · Ordinary Action for Extinctive Prescription
On March 9, 2017, the Thirteenth First Instance Civil Court granted Lisa, S.A.'s revocation motion, revoked the order admitting the ordinary extinctive prescription complaint, and rejected Sistemas y Equipos, S.A.'s action for improper procedural route.
Sistemas y Equipos, S.A., an Avícola Villalobos Group entity, filed an ordinary action for extinctive prescription against Lisa, S.A., seeking a judicial declaration that Lisa's rights to unpaid dividends since 1999 had prescribed. Lisa filed a revocation motion arguing that the ordinary procedural route was improper between commercial entities, as both Article 1039 of the Commercial Code and Clause Twenty-Five of the articles of incorporation require summary commercial proceedings. The Thirteenth First Instance Civil Court granted the revocation, revoked the order admitting the complaint, and rejected the action for improper procedural route.
Sistemas y Equipos, S.A. filed an ordinary lawsuit for extinctive, negative, or liberatory prescription against Lisa, S.A., seeking a judicial declaration that Lisa's rights to unpaid dividends since 1999 had prescribed. The court admitted the complaint on February 24, 2017.
Lisa filed a revocation motion within the twenty-four-hour period prescribed by Article 598 of the Code of Civil and Commercial Procedure, arguing that the ordinary procedural route was improper on two concurrent grounds. First, both parties are commercial entities, and Article 1039 of Guatemala's Commercial Code provides that all actions arising from the Code must proceed through summary proceedings, unless the parties have agreed to arbitration. Second, Clause Twenty-Five of the articles of incorporation (public deed number eighty, dated July 7, 1972) stipulates that disputes between the company and its shareholders shall be resolved through summary proceedings before ordinary courts.
The judge verified that both parties are commercial companies governed by the Commercial Code. She concluded that the plaintiff's claims do not constitute procedural prerequisites that may be adjudicated through ordinary proceedings and granted the revocation motion. The February 24, 2017 order admitting the complaint was revoked, and the complaint and supporting documents filed by Sistemas y Equipos, S.A. were rejected for improper procedural route.
"Las declaraciones pretendidas no constituyen presupuestos procesales que la norma especial citada estipule, para tramitarlo en la presente vía, puesto que como se dijo con antelación las partes procesales son comerciantes sociales y de conformidad con la ley y lo acordando entre éstas, sus diferencias serán resueltas en la vía sumaria" (Page 3)
The rejection of this complaint is a procedural victory for Lisa, S.A., as it prevented Sistemas y Equipos from obtaining a prescription declaration over dividends that the Avícola Villalobos Group itself has failed to pay Lisa since 1999.
| Date | Document | Issued by |
|---|---|---|
| Mar 9 2017 | Order | 13th Civil Court |
The case is resolved. The ordinary prescription complaint was rejected for improper procedural route, with Sistemas y Equipos retaining the right to pursue the action through summary commercial proceedings.