Order

The Ninth Civil Court of First Instance resolved the preliminary exceptions filed by Lisa, S.A. in the commercial summary proceeding brought by Los Abetos, S.A. seeking damages. The court sustained Lisa's exception for failure to fulfill the condition precedent, holding that Lisa's exclusion as a shareholder was not final and the damages claim was therefore premature. The exceptions for defective complaint, lack of standing, prescription, and lapse were denied. Los Abetos was ordered to pay costs.

Case Background

Los Abetos, S.A., represented by Ana Lucrecia Palomo Marroquín de Ortiz, filed a commercial summary proceeding against Lisa, S.A., represented by attorney Tito Enoc Marroquín Cabrera, claiming damages arising from acts that, according to Los Abetos, motivated Lisa's exclusion as a shareholder. Los Abetos alleged that Lisa engaged in harmful conduct, including the use of a paid false sworn statement as the basis for multiple lawsuits. Lisa opposed the claim and filed five preliminary exceptions. Previously, the court had considered an incompetency exception that was denied by the Second Civil and Commercial Court of Appeals.

Defense of Lisa, S.A.

Lisa raised the following preliminary exceptions:

• Failure to fulfill the condition precedent. Lisa argued that its exclusion as a shareholder of Los Abetos, adopted by notarial act of April 25, 2011, was not final. Lisa had filed an opposition proceeding before the Second Civil Court of First Instance (Expediente 01047-2011-00108), which remained pending. While the legality of the exclusion was under judicial review, the condition required to claim damages arising from the exclusion had not been met.
• Defective complaint. Lisa contended that Los Abetos failed to attach essential documents supporting its claim, did not clearly identify the alleged harmful acts, and did not identify the author of the sworn statement at the center of its claim.
• Lack of standing of the defendant. Lisa maintained that the sworn statement was not made by Lisa but by a third party, and that the action should have been directed against that individual.
• Prescription. Lisa invoked Article 1673 of the Civil Code, which provides a one-year limitations period for damages claims, arguing that the acts underlying the exclusion predated the exclusion agreement by more than one year.
• Lapse (caducidad). Lisa argued that Los Abetos knew of the facts motivating the exclusion well before the three-month period established by Article 230 of the Commercial Code for exercising the right of exclusion.

Los Abetos responded that prescription had not run because it learned of the harmful facts on April 4, 2011, that the complaint was not defective, that the lack-of-standing defense was improper because the author of the sworn statement had died and it was Lisa that paid for and used it, and that the condition-precedent exception was inapplicable because no right subject to a suspensive or resolutory condition was at issue.

Court's Analysis

On the defective complaint. The court found that the complaint met the formal and substantive requirements of Articles 61, 106, and 107 of the Civil and Commercial Procedure Code. The exception was denied.

On lack of standing. The court determined that a sufficient connection existed between plaintiff and defendant for Lisa to be legitimately summoned in that capacity, particularly given the allegations regarding the shareholder exclusion agreement and the absence of evidence that Lisa bore no obligation to defend against the claim. The exception was denied.

On prescription. The court linked this exception to its condition-precedent analysis: if the exclusion was not final, the damages claim derived from it was premature, making the computation of the prescriptive period inapplicable. The exception was denied.

On lapse. The court found that Lisa's arguments addressed the lapse of Los Abetos' right to adopt the exclusion resolution, a matter not at issue in this damages proceeding. The exception was denied.

On failure to fulfill the condition precedent. The court sustained this exception. Under Article 227 of the Commercial Code, an exclusion resolution takes effect thirty days after notice to the excluded shareholder, provided the shareholder does not file opposition. Lisa established that it had filed an opposition proceeding (Expediente 01047-2011-00108), which suspended the period for the exclusion to take effect. Because the exclusion was not final, the legal condition required for Los Abetos to claim damages under Article 228 of the Commercial Code had not been met.

Ruling

• The exception for failure to fulfill the condition precedent was granted
• The exception for defective complaint was denied
• The exception for lack of standing of the defendant was denied
• The exception for prescription was denied
• The exception for lapse was denied
• Los Abetos, S.A. was ordered to pay the costs of the proceeding

Legal Basis

• Articles 227 and 228 of the Commercial Code — govern the effects of a shareholder exclusion resolution, the period for it to take effect, and the right to claim damages arising from the acts that motivated the exclusion
• Article 230 of the Commercial Code — establishes a three-month lapse period for exercising the right of exclusion
• Article 1673 of the Civil Code — one-year prescription period for damages claims
• Articles 61, 106, 107, and 116 of the Civil and Commercial Procedure Code — complaint requirements and preliminary exceptions
• Article 576 of the Civil and Commercial Procedure Code — costs imposed on the losing party in an incident

Signatories

• Judge of the Ninth Civil Court of First Instance (not identified by name in the document)

Subsequent Proceedings

Both parties appealed. The Second Civil and Commercial Court of Appeals, in its ruling of January 22, 2015, confirmed the lower court's decision with the sole modification of exempting both parties from the payment of costs.