Appeals court confirms Los Abetos damages claim against Lisa premature pending exclusion outcome
Jan 22 2015
Court of Appeals
The Second Civil and Commercial Court of Appeals upheld, with a partial modification on costs, the order of June 13, 2014, issued by the Ninth Civil Court of First Instance in the summary damages action filed by Los Abetos, S.A. against Lisa, S.A. The court confirmed that the damages claim was premature because Lisa's exclusion as shareholder had not become final, given a pending opposition proceeding. The ruling preserved Lisa's defense against a claim that lacked a procedural foundation while the legality of the exclusion remained unresolved.
Los Abetos, S.A., represented by its judicial agent Ana Lucrecia Palomo Marroquín de Ortiz, filed a commercial summary proceeding for damages against Lisa, S.A., represented by its special judicial agent Tito Enoc Marroquín Cabrera. Los Abetos alleged that Lisa committed fraudulent acts, including the use of a paid testimonial declaration as the basis for judicial actions, which caused harm to the company.
Lisa filed preliminary exceptions for: (a) non-fulfillment of the condition to which the asserted right is subject, (b) defective complaint, (c) lack of standing of the defendant, (d) prescription, and (e) caducity. In the order of June 13, 2014, the Ninth Civil Court sustained the non-fulfillment-of-condition exception and denied the others, ordering Los Abetos to pay costs. Both parties appealed.
Lisa, S.A. challenged the denial of its exceptions for defective complaint, lack of standing, prescription, and caducity. On the defective complaint, Lisa argued that the plaintiff failed to attach essential documents supporting its claim and did not specify the allegedly fraudulent acts. On lack of standing, Lisa contended that the testimonial declaration was not made by Lisa and that the action should have been directed at the declarant. On prescription and caducity, Lisa maintained that the acts underlying the exclusion predated the exclusion agreement by more than one year and that the three-month period under Article 230 of the Commercial Code had expired.
Los Abetos, S.A. challenged the granting of the non-fulfillment-of-condition exception, arguing that the damages claim was based on independent fraudulent acts unrelated to the exclusion and that the opposition proceeding in another court did not constitute a suspensive condition on the asserted right. Los Abetos also contested the costs award.
The court examined each appealed exception under Article 603 of the Civil and Commercial Procedural Code, limiting its review to matters expressly challenged by each appellant.
Defective complaint. The court found that the complaint met the requirements of Articles 50, 61, 63, 79, 106, 107, and 108 of the Procedural Code and that Lisa's arguments were insufficient to sustain the exception. Denial confirmed.
Lack of standing. The court concluded that the procedural prerequisites for this exception were not met, as the complaint established a sufficient connection between plaintiff and defendant. Denial confirmed.
Prescription and caducity. The court noted that Lisa raised both as a single exception, despite their being autonomous procedural institutions with different legal effects. The court further determined that the arguments raised were substantive matters to be resolved at trial. Denial confirmed.
Non-fulfillment of condition. The court confirmed that this exception was well-founded. Article 228 of the Commercial Code recognizes the right of shareholders to claim damages caused by acts that motivated a shareholder's exclusion, but this right presupposes that the exclusion agreement has taken effect. Under Article 227 of the same code, the agreement takes effect thirty days after notification to the excluded shareholder, provided the shareholder does not oppose it. Lisa opposed its exclusion before the Second Civil Court of First Instance (Expediente 01047-2012-00108), suspending the period and preventing the exclusion from becoming final. The damages claim was therefore premature.
"Con la presentación de la demanda indicada el plazo para que surta efecto dicho acuerdo de exclusión se suspende. Circunstancia que impide que pueda hacerse valer la responsabilidad del socio excluido, porque aún no se ha determinado la procedencia de esa exclusión ni se encuentra firme el acuerdo." (Page 9)
Costs. The court modified the first-instance costs award. Finding partial reciprocal success, the court applied Article 574 of the Procedural Code and exempted both parties from costs.