Summary Proceeding

I. Summary Proceeding and First-Instance Ruling

Los Abetos, S.A. filed a commercial summary proceeding against Lisa, S.A. claiming damages allegedly caused by fraudulent acts that motivated Lisa's exclusion as a shareholder, including the use of a paid testimonial declaration as the basis for multiple lawsuits. Lisa answered and filed five preliminary exceptions: failure to fulfill the condition precedent, defective complaint, lack of standing of the defendant, prescription, and lapse (caducidad).

On June 13, 2014, the Ninth Civil Court of First Instance issued the Order, denying the exceptions for defective complaint, lack of standing, prescription, and lapse, but sustaining the exception for failure to fulfill the condition precedent. The court determined that, under Articles 227 and 228 of the Commercial Code, the right to claim damages arising from a shareholder's exclusion presupposes that the exclusion agreement has taken effect. Lisa established that it had filed an opposition to its exclusion before the Second Civil Court of First Instance (Expediente 01047-2011-00108), which suspended the period for the agreement to take effect, leaving the claim premature while the legality of the exclusion remained unresolved. Los Abetos was ordered to pay costs.

This outcome shielded Lisa from a damages claim that lacked a procedural foundation while its exclusion remained under judicial challenge, confirming that the legal condition required to pursue the indemnification action had not been met.

II. Appeal

Both parties appealed. Lisa, S.A. challenged the denial of its exceptions for defective complaint, lack of standing, prescription, and lapse, while Los Abetos, S.A. contested the granting of the non-fulfillment-of-condition exception, arguing that the damages derived from fraudulent acts independent of the exclusion and that the opposition proceeding did not constitute a suspensive condition on the asserted right. Los Abetos also challenged the costs award.

On January 22, 2015, the Second Civil and Commercial Court of Appeals issued the Appeal Ruling, confirming the appealed order on all substantive grounds. The court upheld the finding that the claim was premature under Article 228 of the Commercial Code, as Lisa's exclusion as a shareholder had not become final. On Lisa's other exceptions, the court found that the complaint met legal requirements, that sufficient procedural connection existed between the parties, and that the prescription and lapse arguments constituted substantive matters for resolution at trial. The sole modification was on costs: the court exempted both parties, finding partial reciprocal success under Article 574 of the Civil and Commercial Procedural Code.

The appellate confirmation consolidated Lisa, S.A.'s position.