Grants revocation motion and rejects extinctive prescription complaint for improper procedural route
Mar 9 2017
13th Civil Court
On March 9, 2017, the Thirteenth First Instance Civil Court of the Department of Guatemala granted the revocation motion filed by Lisa, S.A., revoked the February 24, 2017 order that had admitted an ordinary lawsuit for extinctive prescription, and rejected the complaint for improper procedural route. The action had been filed by Sistemas y Equipos, S.A., an Avícola Villalobos Group entity, seeking a judicial declaration that Lisa's rights to unpaid dividends since 1999 had prescribed.
Sistemas y Equipos, S.A. filed an ordinary lawsuit for extinctive, negative, or liberatory prescription against Lisa, S.A. 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.
Lisa argued 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 company's 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 the parties 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.
The judge verified that both Sistemas y Equipos and Lisa are commercial companies whose formation, rights, and obligations are governed by the Commercial Code. She cited Article 1039, which mandates summary proceedings for all commercial actions, and confirmed that Clause Twenty-Five of the articles of incorporation reinforces this rule by expressly requiring summary proceedings for disputes between the company and its shareholders. The court concluded that the plaintiff's claims do not constitute procedural prerequisites that the applicable special statute allows to be adjudicated through ordinary proceedings, and that the revocation motion was therefore well-founded.
"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)