Order

The Eighth First Instance Civil Court of the Department of Guatemala dismissed the extinctive prescription lawsuit filed by Reproductores Avícolas, S.A. (successor by merger of Escobio, S.A.) against Lisa, S.A. The plaintiff sought a declaration that the dividend payment obligation to Lisa arising from the May 31, 2012 Annual Ordinary General Shareholders' Assembly was prescribed and extinguished. The court concluded that the plaintiff failed to prove its claim, finding that the enforceability of the obligation and the starting point for the prescription period had not been established. This ruling represents a first-instance victory for Lisa in a case bearing directly on dividends owed to a 25% shareholder.

Case Background

Escobio, S.A. (later merged by absorption into Reproductores Avícolas, S.A.) filed the lawsuit on February 23, 2018 before the Auxiliary Services Center for Justice Administration. The case was assigned to the Eighth First Instance Civil Court. Lisa, S.A. answered the complaint in the negative on September 2, 2019, filing peremptory exceptions. The evidentiary period opened on September 4, 2019 for thirty days. The sentence was issued on March 28, 2023, nearly five years after filing.

Lisa, S.A. holds 25% of the issued shares in the company. Dividends were decreed at the May 31, 2012 General Assembly but were never paid.

Plaintiff's Claims

Reproductores Avícolas, S.A. sought a declaration that the dividend payment obligation to Lisa, S.A. arising from the May 31, 2012 distribution agreement was prescribed under Article 1508 of the Civil Code, having exceeded the five-year period from when the obligation became enforceable. The plaintiff contended that the corresponding amounts were available to shareholders at the company's registered office the day after the assembly, requiring only a request from each shareholder, and that Lisa never appeared to collect.

The plaintiff offered as evidence: (a) a certificate from the Chairman of the Board of Directors containing the relevant portion of the assembly minutes from May 31, 2012; (b) an accounting certification by Certified Accountant Mónica Griselda Mendizábal Sinay indicating an account payable as of June 1, 2012 arising from the distribution agreement; and (c) a certificate that Lisa had not judicially challenged the distribution agreement.

Defense of Lisa, S.A.

Lisa, S.A., represented by Special Judicial Agent Paola Arana Estrada, filed two peremptory exceptions.

Non-enforceability of the obligation. Lisa argued that the articles of incorporation of Escobio, S.A. (public deed No. 59, dated June 23, 1983), in Clause Sixteen, grants the Board of Directors the authority to "determine the date and form of payment of approved dividends." Because the Board never determined the form, manner, timing, or place of payment, the obligation remained subject to an unfulfilled suspensive condition. Without that condition being met, Lisa lacked a liquid, enforceable credit, and the prescription period could not begin to run. Lisa noted that the assembly minutes made no mention of the amount payable per share, the manner of collection, or the place of collection, and issued no payment instruction to the Board.

Inapplicability of prescription due to interruption. Lisa invoked two grounds for interruption:

• Lisa's actions as creditor. Lisa filed a summary opposition to its exclusion as shareholder (Expediente 01044-2011-00108) on June 7, 2011, challenging the exclusion resolution that failed to mention retained dividends. Lisa also made an extrajudicial demand for dividend payment through a notarial act dated February 28, 2017, executed by Notary Emilia Carolina Cabrera Rosito, to which the plaintiff never responded. Lisa maintained that these acts demonstrate it never abandoned its right to the dividend.

• Actions by the plaintiff and affiliated entities as grounds for interruption. Lisa enumerated seven lawsuits filed by Avícola Villalobos Group entities that resulted in embargoes on Lisa's dividends, under Article 1506 of the Civil Code: ordinary proceeding C2-99-9321 filed by Konrad Losen Mass; Expediente 01046-2009-00357 filed by Avícola Villalobos, S.A.; Expediente 01163-2012-00178 filed by Avícola Villalobos, S.A.; Expediente 01045-2012-00210 filed by Compañía Alimenticia de Centroamérica, S.A.; Expediente 01045-2012-00242 filed by Industria Forrajera de Mazatenango, S.A.; Expediente 01044-2012-00279 filed by Reproductores Avícolas, S.A.; and Expediente 01044-2011-00613 filed by Industria Avícola del Sur, S.A. Lisa argued that upon being decreed by the assembly, the dividends were required by judicial order to be placed under the interventor's administration as part of the embargoed estate, and that the plaintiff could not seek to declare prescribed an obligation whose fulfillment it had itself prevented through embargoes obtained in prior proceedings.

Discriminatory treatment and contradictory conduct. Lisa asserted that the plaintiff paid dividends to all other shareholders voluntarily but selectively withheld those corresponding to Lisa, S.A. Furthermore, the exclusion resolution itself instructed the administration to "liquidate the portion corresponding to Lisa, S.A.," implicitly recognizing the existence of the obligation, while the present prescription action seeks to extinguish that same obligation. Lisa characterized this conduct as manipulation and fraud aimed at appropriating dividends that legitimately belong to Lisa.

Court's Analysis

On Lisa's exceptions. The court noted that while Lisa answered the complaint and filed peremptory exceptions, its evidence was submitted out of time and rejected. Under Article 126 of the Civil and Commercial Procedural Code, which places the burden of proof on the parties, Lisa's defenses remained unproven, preventing the court from reaching their merits. The allegations of prescription interruption, procedural abuse, discriminatory treatment, and contradictory conduct remain unresolved on the merits.

On the plaintiff's claim. The court examined the prerequisites for extinctive prescription: passage of time, creditor inaction, and conditions of enforceability. Analyzing the plaintiff's evidence, the court found:

• The assembly minutes excerpt from May 31, 2012 did not specify when the company was obligated to pay or under what conditions the shareholder was entitled to receive payment.
• The accounting certification establishes an account payable as of June 1, 2012, but does not identify Lisa, S.A. as the beneficiary, rendering it insufficient.
• The articles of incorporation were in the case file but were not offered as evidence, preventing the court from evaluating their content, including the clause on the Board of Directors' authority to determine payment terms.

"La noción de exigibilidad de la obligación a la que alude el artículo 1508 del Código Civil (...) no está claramente definida en el caso de estudio" (Page 24)

The court concluded that without a parameter to determine the date from which the obligation became enforceable, the plaintiff failed to establish the facts underlying its claim.

Ruling

• The extinctive prescription lawsuit filed by Reproductores Avícolas, S.A. against Lisa, S.A. was dismissed
• No costs were imposed

Legal Basis

• Articles 1501 and 1508 of the Civil Code — govern extinctive prescription and the five-year computation period from when the obligation became enforceable
• Article 126 of the Civil and Commercial Procedural Code — places the burden of proof on the parties
• Articles 15, 105, and 132 of the Commercial Code — govern the applicable law for commercial entities, shareholder rights including participation in profits, and the general assembly's authority to decree distribution of profits
• Article 203 of the Constitution — establishes the independence of the judiciary and the power to adjudicate

Signatories

• Licda. Gloria Aracely Rosales Reynoso de Vasquez, Judge
• Lilian Rosana Balcarcel Garcia, Secretary

Subsequent Proceedings

The sentence was notified to Lisa, S.A. on March 12, 2024, nearly a year after issuance. Reproductores Avícolas, S.A. appealed, and the Fifth Civil and Commercial Court of Appeals reversed the first-instance ruling on June 26, 2024, declaring the dividend obligation prescribed and imposing costs on Lisa. Lisa, S.A. filed a cassation appeal, which is pending before the Supreme Court of Justice (cassation appeal of July 23, 2025).