Order

The First Civil Court of First Instance of Guatemala denied the nullity motion filed by Agroprocesos Avícolas, S.A. challenging the December 6, 2016 order that revoked precautionary measures decreed in March 2012. The ruling confirmed that the lifting of embargoes against Lisa, S.A. was lawful because the guarantee bond that Agroprocesos was required to maintain had expired.

Case Background

On March 12, 2012, the court decreed precautionary measures in favor of Agroprocesos Avícolas, S.A. in the ordinary proceeding filed against Lisa, S.A. On September 21, 2012, the court set a guarantee of Q100,000.00 to cover potential damages to Lisa in the event of acquittal, with an express warning that if Agroprocesos failed to post the guarantee, the measures would be lifted. Agroprocesos submitted bond policy No. 44,581 (class B-1) issued by Fianzas El Roble, S.A., valid from October 9, 2012, through October 8, 2013. The bond expired without renewal.

On December 6, 2016, at the request of Lisa, S.A. acting through its representative Tito Enoc Marroquín Cabrera, the court revoked the precautionary measures upon finding that the guarantee had been expired since October 2013.

Agroprocesos Avícolas' Arguments

Alberto Antonio Morales Velasco, acting as general judicial representative of Agroprocesos Avícolas, S.A., filed a nullity motion arguing:

• That the court was required under the last paragraph of Article 532 of the Code of Civil and Commercial Procedure to grant a five-day period to renew the guarantee before lifting the measures, since the required amount had already been guaranteed and there was no breach
• That any request involving opposition must be processed as an incident under Article 135 of the Judiciary Act
• That Article 519 of the Code of Civil and Commercial Procedure requires opposition to the lifting of measures to be processed separately through incidental proceedings
• That the warning issued on September 21, 2012 had been duly complied with, and the measures could not be revoked without a prior hearing to safeguard due process and the right of defense (Article 12 of the Constitution and Article 16 of the Judiciary Act)

Defense of Lisa, S.A.

Lisa, S.A., through its representative Tito Enoc Marroquín Cabrera, argued that Agroprocesos had posted a guarantee only through October 8, 2013, when the bond policy expired, and that the bond was never renewed. The revocation of precautionary measures was therefore lawful.

Court's Analysis

The court analyzed the motion under Articles 613, 616, and 617 of the Code of Civil and Commercial Procedure, which provide that nullity is available only when neither appeal nor cassation lies. Having reviewed the record and the hearing responses, the court found that the challenged order contained neither procedural defect nor violation of law. The revocation of the measures was a direct consequence of the expiration of the guarantee that Agroprocesos bore the burden of maintaining, pursuant to Article 531 of the Code of Civil and Commercial Procedure. The argument that a new period should have been granted to renew the bond lacked legal basis, as the original warning already established the consequences of non-compliance.

Ruling

• Denied the nullity motion for procedural defect and violation of law filed by Agroprocesos Avícolas, S.A. against the December 6, 2016 order
• Ordered Agroprocesos Avícolas, S.A., through its representative Alberto Antonio Morales Velasco, to pay the costs of the incident

Legal Basis

• Articles 613, 616, and 617 of the Code of Civil and Commercial Procedure — grounds and effects of nullity for procedural defect and violation of law
• Article 531 of the Code of Civil and Commercial Procedure — responsibility of the party requesting precautionary measures to post sufficient guarantee
• Article 532 of the Code of Civil and Commercial Procedure — setting of guarantee and warning of measure revocation
• Article 12 of the Constitution of the Republic of Guatemala — right of defense and due process, invoked by Agroprocesos but rejected by the court
• Article 135 of the Judiciary Act — incidental processing of ancillary matters, invoked by Agroprocesos but found inapplicable

Subsequent Proceedings

The First Chamber of the Civil and Commercial Court of Appeals, in its ruling of August 17, 2017, denied the appeal filed by Agroprocesos Avícolas, S.A. against this order, fully confirming the challenged ruling including the first-instance cost award, and imposing additional costs on the appellant in the second instance.