On March 9, 2017, through <doc id="gua-01163-2017-00184-2017-03-09-a" />, 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 right to collect unpaid dividends since 1999 had prescribed. Lisa filed a revocation motion arguing that the ordinary procedural route was improper between commercial entities, since both Article 1039 of the Commercial Code and Clause Twenty-Five of the articles of incorporation require summary commercial proceedings. Through <doc id="gua-01163-2017-00184-2017-03-09-a" />, the Thirteenth First Instance Civil Court granted the revocation, revoked the order admitting the complaint, and rejected it for improper procedural route. The case was resolved in Lisa's favor, leaving the plaintiff only the summary commercial route to attempt the action.
Sistemas y Equipos, S.A., an Avícola Villalobos Group entity, 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 Thirteenth First Instance Civil Court of the Department of Guatemala 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, authorized by Notary Mario Roberto Morales Franco) stipulates that disputes between the company and its shareholders shall be resolved through summary proceedings before ordinary courts, unless they agree to arbitration. Lisa contended that the dispute concerns dividends the company has failed to pay since 1999, a matter that cannot be litigated through ordinary proceedings under the pretext of an extinctive prescription action.
On March 9, 2017, the court issued <doc id="gua-01163-2017-00184-2017-03-09-a" />, resolving the motion. The judge verified that both Sistemas y Equipos and Lisa are commercial companies whose formation, rights, and obligations are governed by the Commercial Code, and concluded that the plaintiff's claims do not constitute procedural prerequisites that may be adjudicated through ordinary proceedings. She granted the revocation motion, revoked the February 24, 2017 admission resolution, and rejected the complaint and supporting documents 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. 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, and left the plaintiff only the summary commercial route to attempt the action again.
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.