Exp. 01042-2017-00059 · Ordinary Action for Extinctive Prescription
Lisa, S.A. filed its appeal brief on June 30, 2025, before the Third Civil and Commercial Court of Appeals, requesting confirmation of the judgment that dismissed the extinctive prescription claim over dividends filed by Industria Avícola del Sur, S.A. The hearing was scheduled for July 1, 2025.
Industria Avícola del Sur, S.A. filed an ordinary civil lawsuit against Lisa, S.A., seeking a declaration of extinctive prescription of the obligation to pay dividends decreed at six annual ordinary general shareholder assemblies held between 2001 and 2011. Guatemala's Tenth First Instance Civil Court ruled against the claim, holding that the Commercial Code does not contemplate prescription of shareholder dividend obligations and that depriving Lisa of its profits would constitute a leonine clause prohibited by Article 34 of the Commercial Code. Industria Avícola del Sur appealed, and Lisa filed its brief before the Third Civil and Commercial Court of Appeals requesting confirmation of the first-instance ruling. The appeal remains pending resolution.
Industria Avícola del Sur, S.A. filed an ordinary civil lawsuit against Lisa, S.A. seeking extinctive prescription of dividends decreed at six annual ordinary general shareholder assemblies held between 2001 and 2011. The plaintiff argued that, absent a specific provision, the general five-year period under the Civil Code applied from the date of each assembly, and that Lisa never appeared to demand payment.
Lisa, S.A. filed three peremptory exceptions and raised substantive defenses. It argued that the obligation was never perfected because Clause Sixteen of the articles of incorporation assigns to the Board of Directors the duty to determine the date and form of payment, a step never taken. Lisa demonstrated that the plaintiff itself had obtained precautionary embargo measures (Expediente 01044-2011-613) on Lisa's dividends and shares in the company, with Industria Avícola del Sur's General Manager designated as judicial depositary. Lisa established active embargoes across multiple proceedings brought by Avícola Villalobos Group entities, including proceedings 01163-2012-00178, 01045-2012-00210, 01045-2012-00242, and 01044-2012-00279. It invoked Article 1506 of the Civil Code on interruption of prescription by executed precautionary measures. Lisa also noted that on April 5, 2011, the plaintiff adopted a resolution excluding Lisa as a shareholder and instructing the administration to liquidate its share, constituting an express recognition of the obligation the plaintiff now sought to extinguish.
The court denied all three of Lisa's peremptory exceptions but also ruled against the prescription claim. The court held that the Commercial Code does not contemplate prescription of dividend payments, that the shareholder-company relationship does not constitute the creditor-debtor duality required by Article 1501 of the Civil Code, that Articles 35 and 111 of the Commercial Code permit distribution of accumulated profits without a fatal deadline, and that extinguishing Lisa's dividends through prescription would amount to a leonine clause prohibited by Article 34 of the Commercial Code. In testimony, Industria Avícola del Sur's legal representative admitted that the articles of incorporation do not contemplate dividend prescription, and the accounting certification of February 2, 2017, recorded an account payable in Lisa's favor derived from the distribution resolutions. No award of costs was made.
The judgment represents a substantive victory for Lisa, S.A.: the court rejected on the merits the attempt to extinguish dividends through prescription, establishing that a shareholder's right to participate in profits does not admit this extinctive mechanism under Guatemalan commercial law.
Industria Avícola del Sur, S.A. appealed the first-instance judgment. Lisa, S.A. filed its brief before the Third Chamber of the Court of Appeals, Civil and Commercial Division (Appeal 236-2024), requesting confirmation of the judgment of February 12, 2024.
The brief develops three lines of defense. First: the dividend payment obligation never became exigible, because the Board of Directors never determined the date and form of payment as required by the articles of incorporation, leaving the obligation as a generic conditional obligation subject to a condition precedent. Second: embargoes decreed on Lisa's dividends across multiple proceedings, obtained by Industria Avícola del Sur itself and by other Avícola Villalobos Group entities (Reproductores Avícolas, S.A., Compañía Alimenticia de Centroamérica, S.A., and Industria Forrajera de Mazatenango, S.A.), interrupted any prescriptive computation under Article 1506 of the Civil Code. Lisa highlights that the dividends, being embargoed, left the patrimonial sphere of both the company and the shareholder, remaining under the custody of the judicial depositary, a role held by Industria Avícola del Sur's own General Manager. Third: the prescription action constitutes fraud upon the law, as the same entity that obtained and maintains the embargoes on Lisa's dividends (renewing guarantee bonds year after year) seeks to have the obligation to pay those very funds, which it retains by judicial mandate, declared extinguished.
Lisa reiterated its first-instance peremptory exceptions and requested that the appellant be condemned to pay costs. The hearing was scheduled for July 1, 2025, and the appellate court's decision remains pending.
The brief reinforces Lisa's position by articulating in greater detail the pattern of contradictory conduct: Avícola Villalobos Group entities embargo Lisa's dividends while simultaneously seeking to have the payment obligation declared prescribed due to the creditor's inaction.
The Third Civil and Commercial Court of Appeals must resolve the appeal filed by Industria Avícola del Sur, S.A. against the judgment that dismissed the extinctive prescription claim over dividends.