The Second Court of Appeals confirmed that Los Abetos' damages claim against Lisa was premature, as the opposition to the shareholder exclusion remained unresolved.

Case Background

Los Abetos, S.A., represented by its judicial agent Ana Lucrecia Palomo Marroquín de Ortiz, filed a commercial summary proceeding for damages against Lisa, S.A., represented by its special judicial agent Tito Enoc Marroquín Cabrera. Los Abetos alleged that Lisa committed fraudulent acts, including the use of a paid testimonial declaration as the basis for judicial actions, which caused harm to the company.

Lisa filed preliminary exceptions for: (a) non-fulfillment of the condition to which the asserted right is subject, (b) defective complaint, (c) lack of standing of the defendant, (d) prescription, and (e) caducity. In the Order of June 13, 2014, the Ninth Civil Court sustained the non-fulfillment-of-condition exception and denied the others, ordering Los Abetos to pay costs. Both parties appealed.

Arguments on Appeal

Lisa, S.A. challenged the denial of its exceptions for defective complaint, lack of standing, prescription, and caducity. On the defective complaint, Lisa argued that the plaintiff failed to attach essential documents supporting its claim and did not specify the allegedly fraudulent acts. On lack of standing, Lisa contended that the testimonial declaration was not made by Lisa and that the action should have been directed at the declarant. On prescription and caducity, Lisa maintained that the acts underlying the exclusion predated the exclusion agreement by more than one year and that the three-month period under Article 230 of the Commercial Code had expired.

Los Abetos, S.A. challenged the granting of the non-fulfillment-of-condition exception, arguing that the damages claim was based on independent fraudulent acts unrelated to the exclusion and that the opposition proceeding in another court did not constitute a suspensive condition on the asserted right. Los Abetos also contested the costs award.

Court's Analysis

The court examined each appealed exception under Article 603 of the Civil and Commercial Procedural Code, limiting its review to matters expressly challenged by each appellant.

Defective complaint. The court found that the complaint met the requirements of Articles 50, 61, 63, 79, 106, 107, and 108 of the Procedural Code and that Lisa's arguments were insufficient to sustain the exception. Denial confirmed.

Lack of standing. The court concluded that the procedural prerequisites for this exception were not met, as the complaint established a sufficient connection between plaintiff and defendant. Denial confirmed.

Prescription and caducity. The court noted that Lisa raised both as a single exception, despite their being autonomous procedural institutions with different legal effects. The court further determined that the arguments raised were substantive matters to be resolved at trial. Denial confirmed.

Non-fulfillment of condition. The court confirmed that this exception was well-founded. Article 228 of the Commercial Code recognizes the right of shareholders to claim damages caused by acts that motivated a shareholder's exclusion, but this right presupposes that the exclusion agreement has taken effect. Under Article 227 of the same code, the agreement takes effect thirty days after notification to the excluded shareholder, provided the shareholder does not oppose it. Lisa opposed its exclusion before the Second Civil Court of First Instance (Expediente 01047-2012-00108), suspending the period and preventing the exclusion from becoming final. The damages claim was therefore premature.

"Con la presentación de la demanda indicada el plazo para que surta efecto dicho acuerdo de exclusión se suspende. Circunstancia que impide que pueda hacerse valer la responsabilidad del socio excluido, porque aún no se ha determinado la procedencia de esa exclusión ni se encuentra firme el acuerdo." (Page 9)

Costs. The court modified the first-instance costs award. Finding partial reciprocal success, the court applied Article 574 of the Procedural Code and exempted both parties from costs.

Ruling

• Confirmed the appealed order with modification only as to costs
• Exempted both parties from costs, each bearing those incurred during the proceedings
• Ordered notification and return of the file to the court of origin with certification of the ruling

Legal Basis

• Articles 12, 28, 29, 203, and 211 of the Constitution of the Republic of Guatemala — procedural guarantees and judicial organization
• Articles 1269, 1434, and 1501 of the Civil Code — conditional obligations and prescription
• Articles 227, 228, and 230 of the Commercial Code — shareholder exclusion, effects of the agreement, caducity of exclusion rights, and the right to claim damages
• Articles 116, 574, 602–610 of the Civil and Commercial Procedural Code — preliminary exceptions, costs, and appeals

Signatories

• Eddy Giovanni Orellana Donis, President
• Elsa Noemi Falla de Galdamez, Associate Justice I
• Gilma Valladares Orellana, Associate Justice II
• Carolina Lucrecia Reyes Gutierrez, Clerk