Avícola Las Margaritas Shareholder Exclusion Damages Claim Dismissed

I. First-Instance Ordinary Proceedings

Order

The Eighth Civil Court of First Instance dismissed the ordinary damages lawsuit filed by Avícola Las Margaritas, S.A. (successor by merger of Importadora de Alimentos de Guatemala, S.A.) against Lisa, S.A. The lawsuit, filed on March 19, 2012, was grounded in the shareholder exclusion agreement adopted by the General Shareholders' Assembly on April 5, 2011.

The plaintiff alleged that Lisa had committed fraudulent acts consisting of the indiscriminate filing of lawsuits across multiple jurisdictions, fabrication of witness testimony, and smear campaigns, preliminarily quantifying patrimonial damages at Q2,673,294.05.

Lisa, S.A. structured its defense around the argument that its judicial actions were a legitimate response to the Avícola Villalobos Group's failure to pay dividends since 1999, supported by an accounting certification showing $5,481,851.00 in annual unpaid dividends and an economic study estimating the total value of shares and retained dividends at $334,578,171.00 as of January 2012. Lisa established that the exclusion agreement was not final, having been challenged in summary proceedings (Expediente 01164-2011-01090) where the court decreed provisional cessation of its legal effects. The Avícola Group itself acknowledged the exclusion was not definitive, as it continued to convene Lisa to shareholder assemblies. Lisa referenced the September 5, 2008 judgment of the Supreme Court of Bermuda in the Bermuda proceedings, which condemned Leamington Reinsurance Company Ltd. to pay $1,954,104.14 for having been used as a vehicle to defraud Lisa.

The court determined that the damages claim derived from the exclusion agreement, and since that agreement was not final, the excluded shareholder's liability under Articles 227 and 228 of the Commercial Code was not yet enforceable. It sustained the peremptory exception of lack of indispensable procedural prerequisites and dismissed the claim, ordering the plaintiff to pay costs.

The ruling represented a complete victory for Lisa, S.A. at first instance, confirming that the legal actions Lisa pursued in defense of its shareholder rights do not constitute grounds for a damages claim.

II. Appeal Before the Fifth Court of Appeals

Appeal 78-2022

The Fifth Civil and Commercial Court of Appeals upheld the dismissal of the damages claim, while correcting the legal reasoning of the first-instance court. The Chamber held that the lower court erred in conditioning the admissibility of the damages claim on the finality of the exclusion, since both exclusion and the obligation to pay damages are independent legal consequences. It therefore overturned the procedural prerequisites exception.

However, upon analyzing the merits, the Chamber concluded that Avícola Las Margaritas, S.A. failed to meet its burden of proof. The documentary evidence established that lawsuits, articles, and publications existed, but did not demonstrate that they constituted compensable harm to the corporate patrimony. The Chamber identified specific evidentiary deficiencies: the plaintiff did not prove its patrimony had been diminished, did not establish the amount of harm, did not demonstrate the "enormous losses" claimed, judicial proceedings carry their own costs awards as the mechanism for compensating litigation expenses, and publications required a declaration of wrongfulness by the competent authority before damages could be sought.

The appeal was declared partially granted, modifying the judgment as to the procedural exception but confirming the dismissal of the damages claim and the costs award against the plaintiff.

The practical result for Lisa, S.A. was identical: the damages claim was definitively rejected on appeal, now on the stronger foundation of evidentiary insufficiency.

III. Cassation Before the Supreme Court of Justice

Cassation Ruling

The Civil Chamber of the Supreme Court of Justice dismissed the cassation appeal filed by Avícola Las Margaritas, S.A., rendering the dismissal of the damages claim final across all instances.

The appellant invoked a single ground: error of fact in the evaluation of evidence by omission, alleging that the Fifth Chamber failed to analyze two documents that would have changed the outcome. The first was an accounting certification recording expenses and provisions of Q2,673,294.05 as of December 31, 2011. The second was the notarized protocolization of proceedings from case CV-11-9062-00CL of the Ontario Superior Court of Justice, Canada.

The Civil Chamber confirmed that the Court of Appeals omitted both documents but concluded that neither was capable of altering the outcome. The accounting certification merely recorded the existence of expenses and provisions without demonstrating they had been effectively paid as a consequence of the alleged damages. The Canadian court proceedings only proved the existence of a pending case in Ontario without independently establishing damages caused by Lisa, S.A.

The appellant was ordered to pay costs and fined Q500.00. This ruling definitively closed the case, confirming that the damages claim against Lisa, S.A. lacked evidentiary support across all instances.