Lisa, S.A. appeals ruling denying its standing and BDT Investment's intervention in accounting proceeding
Feb 19 2025
Lisa, S.A.
This appeal brief, filed by Lisa, S.A. on February 19, 2025, challenges Judgment No. 71 of January 31, 2025, issued by the Sixteenth Circuit Civil Court of the First Judicial Circuit of Panama. That judgment declared sua sponte that Lisa lacked active standing, denied BDT Investments Inc.'s intervention as litisconsorte, and imposed $40,000.00 in costs against Lisa. The appeal requests full reversal before the First Superior Tribunal of the First Judicial District. The filing came weeks after the same trial court, through Order No. 18 of January 10, 2025, had admitted BDT as an interested third party in the capacity of litisconsorte.
Lisa argues that its standing to sue was validated in 2022 by the First Superior Tribunal when it reversed Order No. 1623, which had denied admission of the accounting claim. The appeal cites the appellate ruling's finding that:
"existiendo en el expediente constancias que permiten determinar que a la pretensora le asiste el derecho de demandar el rendimiento de cuentas al depositario judicial" (Page 2)
On this basis, Lisa contends that the trial court had no grounds to declare sua sponte a lack of standing that had already been rejected on appeal. Lisa further specifies that at the time the accounting claim was filed, the Twelfth Circuit Civil Court's Order No. 898 approving the transaction with BDT had not yet become final, meaning Lisa held full standing to bring the action.
The appeal notes that BDT Investments Inc. formally requested incorporation into the proceeding on January 15, 2024, demonstrating the assignment of rights granted by Lisa through the judicially approved transaction. Despite multiple procedural motions urging a ruling, the trial court did not address this petition until the judgment itself, where it denied intervention in contradictory fashion. Lisa invokes Article 747 of the Judicial Code, which mandates personal notification to the true interested party in cases of illegitimacy of standing so that party may exercise its rights. The challenged judgment, having declared Lisa's lack of standing while recognizing BDT as the assignee of those rights, should at minimum have admitted BDT as intervenor or notified it under the statute, rather than simultaneously denying both Lisa's standing and its assignee's intervention.
Lisa alleges that the trial court bypassed essential stages of the special accounting procedure. Under Article 1380 of the Judicial Code, once the claim was admitted, the court was required to order the defendant to present the demanded accounting. The court corrected its admission order through Order No. 712 of April 11, 2023, granting ten business days for Juan Luis Bosch Gutierrez to render the accounting. Instead of complying, Bosch filed an answer to the complaint (a procedural vehicle not contemplated in accounting proceedings) that included an objection to the order to render accounts. Article 1381 of the Judicial Code grants the defendant three days to file a "reclamo" against such an order, yet the trial court never ruled on Bosch's objection, bypassing this procedural stage entirely before issuing judgment.
The appeal highlights Bosch's evasive conduct regarding the accounting obligation, invoking precedent from the Civil Chamber of the Supreme Court of Justice (Judgment of August 30, 1999) establishing that a defendant's refusal to comply in accounting proceedings constitutes an evidentiary indicio that the accounting would yield a balance favorable to the plaintiff. Lisa notes that Bosch, who in November 2008 placed at the court's disposal the sums retained from Lisa (exceeding $44,910,912.00 according to independent audits), never rendered any report on the disposition of those funds.
Lisa challenges the $40,000.00 cost award as disproportionate and unjustified, advancing three arguments. First, a systematic reading of Articles 1071 and 1072 of the Judicial Code demonstrates that cost sanctions apply against parties who acted in bad faith, obstructed the process, or acted negligently, not automatically against the losing party. Second, Lisa initiated the proceeding in evident good faith, basing its claim on a judicial order from the Eleventh Circuit Court recognizing the dividend repayment obligation and Bosch's constitution as judicial depositary. Third, under Article 1076 of the Judicial Code, when a proceeding is nullified due to fault attributable to the court officer, costs fall on that officer rather than the plaintiff. Given the procedural errors committed by the trial court, Lisa argues the cost sanction is all the more unwarranted.