Annuls Lisa's shareholder exclusion for exceeding statutory time limit
May 19 2023
2nd Civil Court
The Second Pluripersonal Civil Court of First Instance of Guatemala, in a ruling dated May 19, 2023, granted Lisa, S.A.'s opposition and annulled the shareholder exclusion agreement adopted by the General Shareholders' Assembly of Compañía Alimenticia de Centroamérica, S.A. (now Avícola Las Margaritas, S.A. by merger) on April 5, 2011. The court concluded that the excluding entity had far exceeded the three-month statutory limitation period established in Article 230 of the Commercial Code and that the commission of fraudulent or malicious acts directly attributable to Lisa, S.A. had not been conclusively demonstrated. The proceeding spanned more than twelve years from the filing of the opposition in 2011 to the ruling in 2023.
Lisa, S.A. holds a 25% equity interest in the Avícola Group entities, including Compañía Alimenticia de Centroamérica, S.A. On May 3, 2011, Lisa was notified by notarial act of its exclusion as a shareholder, pursuant to a resolution adopted at the Ordinary General Shareholders' Assembly held on April 5, 2011. The exclusion was resolved simultaneously by multiple Avícola Group entities. Lisa filed opposition in summary proceedings under Article 227 of the Commercial Code.
Compañía Alimenticia de Centroamérica, S.A. was subsequently absorbed by Avícola Las Margaritas, S.A. through a merger under Article 59 of the Commercial Code, and the latter assumed the procedural position of defendant.
Lisa appeared through its special judicial agent, attorney Paola Arana Estrada. The defendant acted through its general judicial agent, attorney Francisco Chávez Bosque, assisted by attorneys Luis Antonio Mazariegos Fernández, Mario Augusto Alcántara Velásquez, Ricardo Estuardo Recinos, and Mynor Alfredo García Gamarro.
The defendant filed preliminary exceptions of lack of standing of the plaintiff's agent, defective complaint, and arraigo, all of which were denied on October 16, 2012.
Lisa argued the exclusion agreement was void on the following grounds:
The defendant argued in general terms that the exclusion was proper and adopted in accordance with law, invoking the commission of malicious acts by Lisa against the company's interests.
The defendant filed the following peremptory exceptions: A) validity of the exclusion procedure, arguing that the legal process was properly observed; B) lack of merit of the opposition to exclusion, invoking expiration and lack of the company's right to agree to the exclusion; and C) lack of merit of the opposition due to the plaintiff's responsibility for the fraudulent and malicious acts that justified the exclusion agreement.
On the limitation issue, the defendant argued that Lisa's acts were continuous and uninterrupted and that it did not have certainty about who was responsible until the filing of the lawsuit by Margarita Gutiérrez Strauss de Castillo in Ontario, Canada, in February 2011 (Case No. CV-11-9062-00CL), which allegedly revealed that Lisa, S.A., through the corporate structure of Xela Enterprises Ltd. and Boucheron Universal Corp., financed smear campaigns and lawsuits against the Avícola Group.
On the validity of the exclusion procedure. The court determined that the legal framework does not require the shareholder exclusion agreement to be adopted at an Extraordinary Assembly. Clause fifteen of the articles of incorporation of Compañía Alimenticia de Centroamérica, S.A. empowers the Ordinary Assembly to resolve matters not otherwise provided for that may affect the entity's course or general policy. The court distinguished three phases in the exclusion process: (1) adoption of the agreement by majority vote, (2) decision on the acquisition of the excluded shareholder's shares, and (3) liquidation of the corresponding interest. The first phase (the agreement) was taken in accordance with the law and the corporate charter, and accordingly the peremptory exception on the validity of the exclusion procedure was granted.
On the limitation period. The court analyzed whether the three-month period under Article 230 of the Commercial Code had been respected. The defendant argued it did not learn of Lisa's responsibility until the Ontario, Canada lawsuit in February 2011. However, the court observed that the defendant's own arguments and evidence demonstrated that judicial disputes between the parties dated back to at least 2007 and 2008, including lawsuits in the United States and the judgment of the Supreme Court of Bermuda of September 2008. The court concluded that the record did not support the claim that the defendant had no knowledge of the relevant facts until 2011, and that the three-month period had been exceeded by a wide margin.
On fraudulent or malicious acts. The court noted that to establish the commission of fraudulent or malicious acts under Article 226 of the Commercial Code, there must be a precise moment of commission or omission of such acts, or it must be fully established that the result was foreseen by the plaintiff. The defendant based its allegations on the lawsuit filed by Margarita Castillo in Ontario, Canada, but the court observed that the Ontario lawsuit contained no direct allegation against Lisa, S.A. that would constitute the commission of such acts. The peremptory exception based on Lisa's responsibility for malicious acts was denied.
Treatment of evidence. The court gave probative value to the articles of incorporation (deed number 166 of November 13, 1996), the notarial act of April 14, 2011 containing the exclusion agreement, the protocolization of the Ontario, Canada lawsuit, and the Bermuda judgment. Documents 3 through 24 submitted by Lisa (notarial acts of notification of the exclusion by other Avícola Group entities) were denied probative value because they pertained to entities that were not parties to the proceeding. Documents 26 through 40 from both parties (publications, magazines, media campaigns) were given probative value to establish the timeline of incidents between the parties. The hearing was held on May 14, 2021, and both parties submitted closing arguments.
The ruling was appealed by Avícola Las Margaritas, S.A. Lisa, S.A. opposed the appeal through the opposition brief of May 29, 2024. The Court of Appeals affirmed the first-instance ruling on June 5, 2024, upholding the nullity of Lisa's exclusion. Avícola Las Margaritas, S.A. filed a cassation appeal, which Lisa, S.A. opposed through the brief of April 3, 2025. The cassation appeal remains pending.