Lisa rebuts appellant's grievances, seeks confirmation of shareholder exclusion annulment
May 29 2024
Lisa, S.A.
Lisa, S.A., through its legal representative Paola Arana Estrada, filed its appellate brief before the Fifth Civil and Commercial Court of Appeals in Appeal No. 145-2024, opposing the appeal lodged by Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.) against the first-instance ruling of May 19, 2023 issued by the Second Multi-Judge Civil Court of First Instance of Guatemala City, which granted Lisa's opposition to its exclusion as shareholder and declared the exclusion agreement of April 5, 2011 null and without legal effect. The brief dismantles each of the appellant's grievances and requests full confirmation of the first-instance ruling.
On April 5, 2011, the Ordinary General Shareholders' Assembly of Compañía Alimenticia de Centroamérica, S.A. adopted a resolution excluding Lisa, S.A. as shareholder, communicated by notarial act on May 3, 2011. Lisa filed a summary opposition lawsuit challenging the exclusion agreement. After more than a decade of proceedings, the Second Multi-Judge Civil Court issued its ruling on May 19, 2023, granting Lisa's claim, annulling the exclusion agreement, and imposing costs on the defendant. Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.) appealed the ruling, and the hearing was set for May 29, 2024.
Factual error in the grievances. Lisa identified as a preliminary defect that the appellant's brief references a shareholders' assembly held on "April 14, 2011," when the assembly that adopted the exclusion agreement was held on April 5, 2011, as established in the complaint, the evidence, and the appealed ruling. Lisa argued that grievances based on nonexistent facts should be rejected outright as they do not correspond to acts or events from the underlying proceeding or the appealed ruling.
No fraudulent acts attributable to Lisa. The appellant's central argument was that the trial court failed to properly evaluate the evidence consisting of a certified copy of Notarial Protocol Act No. 13, containing a lawsuit filed by Margarita Castillo before the Ontario Superior Court of Justice in Canada. Lisa conducted a comprehensive analysis of this document, which exceeds 1,000 pages, demonstrating that:
Correct evidentiary assessment by the trial court. Lisa argued that the trial judge did evaluate the Canadian lawsuit evidence, assigning it probative value on pages 39 and 47 of the ruling, but correctly concluded that the document does not prove the commission of fraudulent acts by Lisa, directly or indirectly. The brief quoted the trial court's reasoning:
"la parte demandada invoca la comisión de actos fraudulentos o dolosos contra la sociedad y manifiesta que devienen de la demanda entablada por la señora Margarita Castillo en Ontario Canadá (...) sin embargo para establecer si estos actos son fraudulentos o dolosos (...) tendría que existir un momento preciso en cuanto a la comisión u omisión de tales actos (...) Situación que no ha quedado establecida de manera contundente" (Page 8)
Prescription and lapse of the exclusion agreement. Lisa maintained that, pursuant to Article 230 of the Commercial Code, the period for adopting a shareholder exclusion agreement is three months from the date the company becomes aware of the acts underlying the exclusion. The brief established, based on the appellant's own statements and the evidence on record, that the excluding entity had knowledge of the alleged fraudulent acts since 2008, including judicial proceedings in Bermuda and the United States. The exclusion agreement, adopted only on April 5, 2011, far exceeded the statutory deadline.
No judicial determination of fraud. Lisa emphasized that it was excluded without any judicial pronouncement establishing that the acts invoked as grounds for exclusion actually constituted fraudulent or doloso conduct perpetrated by Lisa. The exclusion was based solely on allegations by a third party.
The Fifth Civil and Commercial Court of Appeals issued its appellate ruling on June 5, 2024, confirming the first-instance ruling and declaring the appeal without merit. Avícola Las Margaritas subsequently filed a cassation appeal, which Lisa opposed through a brief filed on April 3, 2025.