Lisa, S.A. files an appeal brief before the Third Chamber of the Court of Appeals opposing extinctive prescription of dividends, arguing that embargoes obtained by the plaintiff itself preclude any prescriptive computation.

Case Background

Industria Avícola del Sur, S.A. filed an ordinary action seeking extinctive prescription of its obligation to pay Lisa, S.A. the dividends decreed by the Annual Ordinary General Shareholders' Assemblies held on May 3, 2004, November 8, 2006, August 25, 2008, December 17, 2009, May 6, 2010, and April 5, 2011. The Tenth Pluripersonal Court of First Instance, Civil Division, dismissed the complaint in the Order of February 12, 2024. Industria Avícola del Sur appealed, the matter was docketed as Appeal 236-2024 before the Third Chamber of the Court of Appeals, Civil and Commercial Division, and the hearing was scheduled for July 1, 2025. Lisa, S.A. appears through its legal representative Paola Arana Estrada.

Defense of Lisa, S.A.

On the birth of the obligation. Lisa argues that the dividend payment obligation was never perfected. Under Clause Sixteen of Industria Avícola del Sur's articles of incorporation (public deed number 19 of February 18, 1988, authorized by notary Gustavo Adolfo Forno Putzeys), the Board of Directors bears the express obligation to determine the date and form of payment of dividends approved by the Assembly. Lisa contends that while the Assemblies decreed the distribution of profits, the Board of Directors never fulfilled this requirement, leaving the obligation as a generic conditional obligation subject to a condition precedent, lacking the essential requirements for its existence as a determined and enforceable obligation. The plaintiff neither proved nor argued that this subsequent act was ever performed.

On the interruption of prescription by embargoes. Lisa argues that, even if the obligation were considered perfected, the prescriptive period was interrupted by precautionary embargo measures decreed on Lisa's dividends across multiple proceedings. The brief identifies active embargoes in the following cases:

• Expediente 01044-2011-00613 and Expediente 01042-2012-00129, both before the Eleventh Court of First Instance, Civil Division, where dividends, monetary participation, and any settlement owed to Lisa in Industria Avícola del Sur were embargoed
• Expediente C2-99-9321 before the Seventh Court of First Instance, Civil and Commercial Division
• Expediente 01046-2009-00357 before the Fifth Court of First Instance, Civil and Commercial Division
• Exp. 01163-2012-00178 before the Thirteenth Court of First Instance, Civil and Commercial Division
• Exp. 01045-2012-00210 before the First Court of First Instance, Civil and Commercial Division
• Exp. 01045-2012-00242 before the First Court of First Instance, Civil and Commercial Division
• Exp. 01044-2012-00279 before the Thirteenth Court of First Instance, Civil and Commercial Division

Lisa states that these embargoes were obtained by Industria Avícola del Sur itself and by other Avícola Villalobos Group entities (Reproductores Avícolas, S.A., Compañía Alimenticia de Centroamérica, S.A., and Industria Forrajera de Mazatenango, S.A.), and that all were initiated before the prescription action was filed. Under Article 1506 of the Civil Code, prescription is interrupted by a duly notified judicial complaint or by any executed precautionary measure. Lisa highlights that Industria Avícola del Sur expressly acknowledged in its Declaration of Party during the evidentiary period that the embargoes interrupt prescription.

On the impossibility of prescription over embargoed assets. Lisa argues that the dividends, being subject to embargo, left the patrimonial sphere of both the company and the shareholder, becoming part of the embargoed patrimonial mass under the custody of the judicial depositary, a role held by Industria Avícola del Sur's own General Manager. Citing jurist Mario Aguirre Godoy, Lisa contends that an embargo limits the holder's faculties of disposition, and that extinctive prescription requires the creditor to have had free disposition over the asset, a condition that is not met while the dividends remain embargoed.

"Todo acto de disposición o gravamen sobre el bien embargado posterior a la efectividad del embargo o las medidas cautelares, que ya pesan sobre las utilidades que en este caso pretende la actora se declaren prescritos y sin obligación de pago para la actora hacia mi mandante, es ineficaz" (Page 7)

On fraud upon the law and abuse of process. Lisa characterizes the prescription action as a serious manipulation and fraud. The plaintiff entity, which obtained and maintains the embargoes on Lisa's dividends (renewing guarantee bonds year after year), now seeks to have the obligation to pay those same dividends, which it retains by judicial mandate, declared extinguished. Lisa argues that the Avícola Villalobos Group entities have used multiple proceedings with the sole purpose of appropriating Lisa's dividends and achieving illicit enrichment, retaining the funds through embargoes while simultaneously arguing that the payment obligation has prescribed due to the creditor's inaction.

Peremptory exceptions. Lisa reiterates the exceptions raised at first instance: inadmissibility of the complaint based on (a) failure to meet the legal and essential requirements to support the claim, (b) lack of legal standing to file the action, and (c) failure to meet the condition to which the asserted right is subject.

Relief Sought

• The appeal filed by Industria Avícola del Sur, S.A. be dismissed
• The Order of February 12, 2024, issued by the Tenth Pluripersonal Court of First Instance, Civil Division, be affirmed
• The appellant be condemned to pay procedural costs

Legal Basis

• Article 15 of the Commercial Code — commercial companies are governed by the provisions of their articles of incorporation
• Article 227 of the Commercial Code — opposition to shareholder exclusion resolution
• Articles 683 and 686 of the Commercial Code — duties of the judicial depositary and cash-oversight interventor
• Article 1319 of the Civil Code — extinctive prescription
• Article 1501 of the Civil Code — provisions on obligations
• Article 1506 of the Civil Code — interruption of prescription by judicial complaint or executed precautionary measure
• Article 1508 of the Civil Code — computation of prescription
• Article 1513 of the Civil Code — provisions on prescription
• Article 610 of the Code of Civil and Commercial Procedure — hearing and resolution on appeal
• Article 12 of the Constitution of the Republic of Guatemala — right of defense

Signatories

• Rossana Mishelle Ramírez Paredes, Attorney and Notary (signs at the request of the filing party)