The First Chamber of the Court of Appeals denied Agroprocesos Avícolas' appeal and confirmed the revocation of precautionary measures against Lisa, S.A. after failure to maintain the Q. 100,000.00 surety bond.

Case Background

In the ordinary proceeding brought by Agroprocesos Avícolas, S.A. against Lisa, S.A. (Exp. 01045-2012-00179), the first-instance court decreed precautionary measures against Lisa and set a guarantee of Q. 100,000.00 to cover potential damages to the defendant should the plaintiff's claims fail. The original order expressly warned Agroprocesos that failure to post and maintain the guarantee would result in the measures being lifted.

Agroprocesos initially complied by posting a surety bond valid for one year, but allowed it to expire without renewal. Lisa requested the lifting of the precautionary measures, and the court, through the December 6, 2016 Order, revoked them. Agroprocesos filed a nullity motion, which the February 1, 2017 Order denied. That denial is the subject of this appeal.

Appellant's Grievances

Agroprocesos Avícolas, S.A., through its representative Alberto Antonio Morales Velasco, raised three grievances: that the court should have granted a five-day period to renew the guarantee pursuant to Article 532 of the Code of Civil and Commercial Procedure before lifting the measures; that the request to lift the measures constituted opposition requiring resolution through an incidental proceeding under Article 135 of the Judiciary Act; and that Article 519 of the Code of Civil and Commercial Procedure required the opposition to be resolved in a separate incidental track.

Court's Analysis

The Court examined the grievances within the framework of Article 603 of the Code of Civil and Commercial Procedure, which limits appellate review to matters expressly challenged and unfavorable to the appellant.

On the central argument that the court should have granted a prior hearing before lifting the measures, the Court reasoned that Article 534 of the Code of Civil and Commercial Procedure provides that precautionary measures are issued without hearing the party against whom they are sought and remain in effect until revoked or modified. Applying the principle that the accessory follows the principal, the Court held that if the decree of precautionary measures does not require a prior hearing, their revocation does not require one either.

The Court found that Agroprocesos had been expressly warned when the guarantee was originally set: if it failed to maintain the surety bond, the measures would be lifted. Agroprocesos initially posted the bond, but allowed it to expire without renewal. The lifting of the measures was not an arbitrary decision but the direct consequence of Agroprocesos' failure to comply with the original warning.

Ruling

• The appeal filed by Agroprocesos Avícolas, S.A. against the February 1, 2017 Order was denied
• The appealed order was confirmed, including the first-instance costs award
• Agroprocesos Avícolas, S.A. was ordered to pay costs in the second instance

Legal Basis

• Articles 203 and 205 of the Constitution of the Republic of Guatemala — constitutional foundation of judicial authority
• Article 532 of the Code of Civil and Commercial Procedure — guarantee requirement for maintaining precautionary measures
• Article 534 of the Code of Civil and Commercial Procedure — precautionary measures are issued without hearing the party against whom they are sought
• Article 572 of the Code of Civil and Commercial Procedure — party responsibility for procedural costs and cost awards
• Article 603 of the Code of Civil and Commercial Procedure — scope of appellate review limited to matters expressly challenged and unfavorable to the appellant

Signatories

• Elvia Ester Velásquez Sagastume, First Presiding Magistrate, First Chamber of the Court of Appeals, Civil and Commercial Division
• Wilber Eduardo Castellanos Venegas, Second Presiding Magistrate, First Chamber of the Court of Appeals, Civil and Commercial Division
• Brenda Monroy Loyo, Clerk