BDT appeals denial of its litisconsort intervention and Bosch's obligation to render accounts
Mar 13 2025
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BDT Investments Inc. filed its appeal brief before the First Superior Tribunal of the First Judicial District of Panama, challenging Judgment No. 71 of January 31, 2025, issued by the Sixteenth Circuit Civil Court in the summary accounting proceeding brought by Lisa, S.A. against Juan Luis Bosch Gutierrez. Filed by attorney Carlos de Icaza Muñoz on behalf of BDT, the appeal attacks three aspects of the judgment: the denial of BDT's intervention as litisconsort, the ex officio declaration of Lisa's lack of active standing without following the procedure mandated by law, and the rejection of Bosch's obligation to render accounts as judicial depositary. This brief complements Lisa, S.A.'s appeal against the same judgment.
The appeal recounts that Lisa, S.A. initiated the summary accounting proceeding against Bosch, who had constituted himself as judicial depositary before the Eleventh Civil Court of the dividends that Villamorey, S.A. retained from Lisa. The claim was initially denied admission through Order No. 1623 of September 27, 2021, but the First Superior Tribunal reversed that decision on September 30, 2022, affirming that Lisa had the right to demand an accounting from the judicial depositary. BDT emphasizes that Lisa's standing was the first issue validated in that appellate ruling, making it inexplicable that the judgment now under appeal would declare Lisa's lack of active standing ex officio.
BDT sought admission to the proceeding as litisconsort, relying on the fact that the Twelfth Circuit Civil Court approved, through Order No. 898 of April 12, 2022, a settlement agreement by which Lisa, S.A. irrevocably assigned its litigation rights to BDT across proceedings within and outside Panama. The appeal highlights a central contradiction in the challenged judgment: the trial court itself acknowledged that BDT met all the requirements under Article 612 of the Judicial Code for admission as litisconsort, including the substantive relationship evidenced by the assignment of rights and the defendant's own acceptance in his answer. Yet rather than accepting the intervention outright as Article 603 of the Judicial Code mandates, the judge deferred the determination to the merits ruling and ultimately denied it in the operative section, contradicting his own reasoning.
"El juez determina que se cumplen los requisitos para vincular a BDT como litisconsorte y señala que se encuentra acreditada tal situación; no obstante, en líneas subsiguientes señala de manera contradictoria que considera pertinente resolver la intervención de litis consorte dentro del fallo de fondo." (Page 5)
The appeal argues that the trial court misapplied the concept of lack of active standing by concluding that Lisa lacked legitimacy because it had assigned its litigation rights to BDT, without drawing the correct legal consequence. Article 747 of the Judicial Code provides that, in cases of lack of standing, the court must personally notify the true interested party so it may exercise its rights. BDT contends that the judge entirely failed to comply with this mandate: if he believed Lisa lacked standing and BDT was the true holder of the rights, the proper course was to notify BDT to appear formally in the proceeding, not to deny both Lisa's standing and BDT's intervention simultaneously. The appeal emphasizes that the assignment of litigation rights does not extinguish the cause of action but merely transfers its ownership, meaning the assignee assumes the legal position of the assignor and acquires the same standing to participate.
The appeal challenges the trial court's conclusion that Bosch lacks passive standing because he acted as legal representative of Villamorey, S.A. rather than in his personal capacity. BDT argues this interpretation is unduly restrictive given the duty to account. Article 1379 of the Judicial Code provides that whoever has performed a role that civil law requires to account must do so. BDT maintains that Bosch, by assuming the function of judicial depositary of Lisa's dividends, acquired a legal responsibility that is not diluted by the fact that he acted on behalf of a legal entity. Panamanian law does not distinguish between performing the role in one's own name or on behalf of a corporation: what matters is that whoever performs the depositary function must fulfill the duty to render accounts.