Order

The Fourteenth Civil Court of First Instance of Guatemala granted the motion for revocation filed by Lisa, S.A. and revoked the decree admitting Escobio, S.A.'s extinctive prescription claim over dividend obligations, rejecting the complaint for having been filed under the wrong procedural route. The ruling halted an attempt to extinguish by prescription the obligations to pay dividends decreed in various shareholder assemblies of Escobio, S.A. in favor of Lisa, S.A.

Case Background

Escobio, S.A. filed an ordinary civil lawsuit against Lisa, S.A. before the Fourteenth Civil Court of First Instance, seeking a judicial declaration that dividend payment obligations arising from profit distribution resolutions approved at various shareholder assemblies of Escobio had prescribed. The complaint was admitted by decree dated February 24, 2017.

Lisa, S.A., through its special judicial representative, Tito Enoc Marroquín Cabrera, filed a motion for revocation against the admission decree.

Plaintiff's Claims

Escobio, S.A. sought a judicial declaration that the obligation to pay dividends to Lisa, S.A., arising from profit distribution resolutions adopted at various shareholder assemblies, was time-barred by extinctive prescription. Had this claim succeeded, it would have extinguished Lisa's right to collect dividends owed as a 25% shareholder of the company.

Defense of Lisa, S.A.

Lisa, S.A. filed a motion for revocation based on two procedural arguments:

• Wrong procedural route. Both the plaintiff and the defendant are commercial entities. Under Article 1039 of the Commercial Code, disputes between merchants must be resolved through commercial summary proceedings, not ordinary civil proceedings.
• Submission clause in the articles of incorporation. The twenty-fifth clause of Escobio, S.A.'s articles of incorporation provides that any disputes between the company and its shareholders that cannot be resolved directly shall be settled through summary proceedings before the ordinary courts. Under Article 13 of the Judiciary Act, this clause binds the parties and precludes the ordinary route.

Court's Analysis

The court examined the case record and determined that Escobio, S.A.'s claim was a liberatory action seeking prescription of dividend payments arising from shareholder assembly resolutions. The court reasoned:

• Although prescription is governed by the Civil Code, in the present case it arises from purely commercial acts (profit distributions approved at shareholder assemblies of a commercial entity).
• Article 1039 of the Commercial Code provides that disputes between merchants arising from commercial acts must be resolved through commercial summary proceedings.
• The plaintiff's claims are directed against one of its own shareholders, which triggers the twenty-fifth clause of the articles of incorporation, expressly submitting disputes between the company and its shareholders to the summary route.

The court concluded that the ordinary civil process was not the appropriate route and that the motion for revocation should be granted.

Ruling

• The motion for revocation filed by Tito Enoc Marroquín Cabrera, in his capacity as special judicial representative of Lisa, S.A., was granted
• The admission decree dated February 24, 2017 was revoked
• The complaint filed by Escobio, S.A. was rejected for processing, as the ordinary civil process is not the appropriate procedural route; the claim must be pursued through commercial summary proceedings
• The return of documents attached to the initial filing and their respective copies was ordered at the appropriate procedural stage

Legal Basis

• Articles 12, 203, and 204 of the Constitution of Guatemala — due process guarantees and principles of judicial administration
• Articles 1501 and 1508 of the Civil Code — prescription regime
• Articles 25, 27, 28, 29, 31, 44, 50, 51, 62, 63, 66, 67, 69, 71, 96, 109, 229, 596, and 597 of the Civil and Commercial Procedure Code — civil procedural rules, including the regime for revocation of decrees (Article 598)
• Articles 2, 3, 10, 14, 15, and 1039 of the Commercial Code — commercial summary proceedings for disputes between merchants
• Articles 141 through 143 of the Judiciary Act — procedural application rules, including Article 13 on submission clauses

Signatories

• Lic. Saúl Haroldo Muralles Muralles, Judge
• Licda. Sheny Marisol Ramírez Velásquez, Clerk