Denies appeal and confirms nullity of Lisa's shareholder exclusion for exceeding statutory deadline
Jun 5 2024
Court of Appeals
The Fifth Appeals Chamber of the Civil and Commercial Court of Appeals confirmed the first-instance ruling that granted the shareholder exclusion opposition claim filed by Lisa, S.A. against Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.). The appellate court held that the exclusion resolution adopted on April 5, 2011 was untimely, having been taken outside the three-month caducidad period established under Article 230 of the Commercial Code, counted from the date the excluding entity gained knowledge of the alleged harmful acts attributed to Lisa, S.A.
The proceeding originated as a summary opposition to shareholder exclusion action brought by Lisa, S.A. against Avícola Las Margaritas, S.A. The defendant, acting as successor by merger of Compañía Alimenticia de Centroamérica, S.A., had resolved at a General Shareholders' Assembly on April 5, 2011 to exclude Lisa, S.A. as a shareholder, invoking the commission of alleged fraudulent acts against the company.
The first-instance ruling, issued by the Second Pluripersonal Court of First Instance, Civil Division, Department of Guatemala, granted Lisa, S.A.'s claim, declared the exclusion resolution void and without legal effect, and ordered the defendant to pay costs. Avícola Las Margaritas, S.A. appealed.
Lisa, S.A. argued that the grievances raised by Avícola Las Margaritas, S.A. were unfounded. Lisa contended that the first-instance judge had properly evaluated the evidence, including the notarial deed of protocolization number thirteen containing the lawsuit filed by Margarita Castillo before the Supreme Court of Justice of Ontario, Canada. Lisa, S.A. maintained that this document, spanning over one thousand pages, did not prove that Lisa, S.A. had directly or indirectly committed the fraudulent acts detailed in the exclusion resolution.
Specifically, Lisa, S.A. argued that the defendant failed to demonstrate: (1) that the alleged fraudulent acts had been committed directly or indirectly by Lisa, S.A.; (2) that such acts had personally affected Compañía Alimenticia de Centroamérica, S.A.; and (3) that the alleged fraudulent acts had any factual basis, as there was no proof of direct or indirect harm to the excluding entity's reputation or commercial standing. Lisa, S.A. concluded that the caducidad period under Article 230 of the Commercial Code had expired well before the 2011 exclusion resolution, given that the appellant itself acknowledged having knowledge of the acts since 2007.
The appellant argued that the first-instance judge failed to properly evaluate the evidence, particularly the copy of the protocolization deed containing the Ontario Superior Court proceeding. Avícola Las Margaritas contended that this document demonstrated that the harmful acts motivating the exclusion continued to occur within three months of the April 5, 2011 assembly date, and that Lisa, S.A. was part of a corporate structure (through Xela Enterprises, Ltd.) that financed the harmful actions.
The Chamber focused its analysis on the caducidad period under Article 230 of the Commercial Code, which provides that the right of exclusion lapses if the company does not exercise it within three months following the date on which it gains knowledge of the event that may give rise to the exclusion.
The Chamber observed that the appellant itself acknowledged in its appeal brief that the harmful acts "continued to be carried out" and "kept being performed," which confirmed that knowledge of these acts predated the three-month window before the exclusion assembly. The court distinguished between the date of knowledge of the acts and the continuation of those acts, holding that Article 230 refers to the date on which knowledge is obtained, not to the continuation of the harmful conduct.
"el artículo arriba citado dice a partir de la fecha en que se tenga conocimiento, no se refiere a la continuación de los actos dolosos, siendo que obviamente la fecha de conocimiento si deviene de tiempo anterior a los tres meses establecidos por la ley como lo señala el juez de primer grado" (Page 30)
Because the appellant failed to demonstrate that the exclusion resolution was adopted within the statutory three-month period from the date of knowledge, the Chamber confirmed that the exclusion was untimely.
Avícola Las Margaritas, S.A. filed a cassation appeal against this ruling. Lisa, S.A. opposed the cassation through an opposition brief dated April 3, 2025.