Lisa seeks cassation dismissal after two rulings voiding shareholder exclusion resolution
Apr 3 2025
Lisa, S.A.
Lisa, S.A., through its special judicial agent Rossana Mishelle Ramirez Paredes, filed its opposition brief for the hearing on the cassation appeal lodged by Avicola Las Margaritas, S.A. (successor by merger of Compania Alimenticia de Centroamerica, S.A.) before the Civil Chamber of the Supreme Court of Justice. The brief requests dismissal in limine based on fatal technical defects and, alternatively, demonstrates the groundlessness of the two cassation motions: error of fact in the appreciation of evidence and improper application of the law. The extraordinary appeal challenges the appellate ruling of June 5, 2024, which affirmed the first-instance ruling of May 19, 2023 that upheld Lisa's opposition to its exclusion as a shareholder.
On April 5, 2011, the General Shareholders' Assembly of Compania Alimenticia de Centroamerica, S.A. adopted a resolution excluding Lisa, S.A. as a shareholder. The resolution was notarially communicated to Lisa on May 3, 2011. Lisa commenced summary opposition proceedings, forming Case No. 01165-2011-01081 before the Second Multi-Judge Civil Court of First Instance of the Department of Guatemala.
Lisa grounded its opposition on three bases: (1) the resolution required an Extraordinary Assembly, not an Ordinary one, under Article 135 of the Commercial Code; (2) the company failed to demonstrate sufficient accumulated earnings and capital reserves to repurchase the excluded shareholder's shares, as required by Article 111 of the Commercial Code; and (3) the right to exclude had lapsed under Article 230 of the Commercial Code, which imposes a three-month limitation period from the date of knowledge of the relevant facts.
Lisa maintained that the true motive behind the exclusion was its reporting of fraud committed by the Avicola Group and its related entities, supported by a judgment from the Supreme Court of Bermuda dated September 5, 2008. The excluding entity sought to justify the exclusion based on a lawsuit filed in Canada by Margarita Castillo against third parties, in which Lisa was not even a party.
The Second Multi-Judge Civil Court of First Instance issued its ruling on May 19, 2023, granting Lisa's claim. The court found the peremptory exception based on Lisa's alleged fraudulent acts groundless because there was no direct allegation against Lisa, S.A. in the Canadian lawsuit invoked by the defendant. On the merits, the court determined that the defendant had knowledge of the alleged facts since 2007-2008, far exceeding the three-month limitation period of Article 230 of the Commercial Code. The exclusion resolution was declared void and without legal effect, with costs imposed on the defendant.
The Fifth Civil and Commercial Court of Appeals, in its ruling of June 5, 2024, denied the appeal filed by Avicola Las Margaritas. The court confirmed that Article 230 of the Commercial Code sets the limitation period from the date of knowledge of the facts, not from the continuation of the alleged fraudulent acts. The appellant failed to demonstrate that the exclusion resolution had been adopted within the three-month statutory period.
Lisa identified three fatal defects in the cassation appeal warranting dismissal in limine:
Repetition of appellate arguments. The appellant raised the same arguments as in the appeal, seeking to convert cassation into a third instance of review, contrary to the constitutional principle that no proceeding may have more than two instances.
Misidentification of the type of proceeding. The cassation petition identified the case as an "ordinary action" when it is a summary proceeding. This is not a mere formality: the grounds for cassation and the required technical framework differ depending on the type of proceeding.
Insufficient legal basis for standing. The appellant invoked Article 621 of the Code of Civil and Commercial Procedure, applicable to ordinary proceedings. However, cassation standing in mercantile summary proceedings is governed by Article 1039 of the Commercial Code, which establishes specific monetary thresholds. The appellant failed to adequately establish the legal basis supporting cassation from a summary proceeding judgment.
The appellant claimed that the Court of Appeals failed to analyze the certified copy of notarial protocolization deed number thirteen, which contains the lawsuit filed by Margarita Castillo before the Superior Court of Justice of Ontario, Canada.
Lisa demonstrated that the Court of Appeals did consider and analyze this document. The appellate ruling expressly referenced the document identified by the appellant in paragraph 10 of its appeal brief, evidencing that the court performed its evaluative function. The court's conclusion was that, even considering the document, the date of knowledge of the facts preceded the three-month statutory period, since the appellant itself admitted knowledge of judicial proceedings since 2007 and 2008.
Lisa further argued that the evidence lacks relevance to the outcome: the Canadian lawsuit was filed by Margarita Castillo (not by the appellant) against Xela Enterprises, Ltd., Tropic International Limited, Fresh Quest, Inc., 696096 Alberta, Ltd., Juan Guillermo Gutierrez, and Juan Arturo Gutierrez. There is no overlap between the parties in that lawsuit and those in the present proceeding. The document does not demonstrate any direct or indirect participation by Lisa, S.A. in the acts alleged therein, and assertions contained in a foreign lawsuit do not constitute proof of the facts imputed in this proceeding.
The appellant claimed that the Court of Appeals improperly applied Article 230 of the Commercial Code. Lisa refuted this argument by noting that Article 230 is the very provision governing shareholder exclusion and the requirements for its validity. The appellant itself relied on this article as the basis for its claims throughout the proceeding.
Lisa highlighted that the appellant expressly admitted in its appellate brief that it had knowledge of judicial proceedings since 2007 and 2008, confirming that the three-month limitation period had long expired by the time the exclusion resolution was adopted in April 2011. Article 230 establishes that the period runs from the date of knowledge of the fact, and the legislature did not intend that the continuation of alleged fraudulent acts suspends the limitation period.
The exclusion of Lisa as a shareholder of Compania Alimenticia de Centroamerica constitutes a direct mechanism to strip Lisa of its corporate rights, including its entitlement to dividends. Lisa, S.A. maintained that the true motivation behind the exclusion resolution was its reporting of fraud committed by the Avicola Group. The cassation appeal, riddled with technical defects and based on the same arguments already rejected in two instances, prolongs the legal uncertainty over Lisa's shareholder status. The appellant attributed to Lisa acts committed by third parties, without demonstrating any direct or indirect connection to the entity.