Exp. 01046-2020-00057

I. First Instance

In its <doc id="gua-01046-2020-00057-2020-12-07-a" /> of December 7, 2020, the Fifth Civil Court of First Instance granted Lisa, S.A.'s revocatoria and rejected the ordinary lawsuit for extinctive and liberatory prescription of dividend payment obligations filed by Cerro Colorado, S.A. Cerro Colorado had alleged that more than five years had elapsed since the annual ordinary shareholders' assembly of June 9, 2014, which approved the distribution of profits from fiscal year 2013 (January 1 through December 31, 2013), and the complaint had been admitted by resolution of January 24, 2020. Lisa's revocatoria argued that the ordinary process was improper and that the dispute had to be litigated through summary proceedings under Article 1039 of the Commercial Code.

The court structured its analysis around three questions: the mercantile nature of the claim, the applicable procedural route, and the absence of an arbitration agreement. It held that the obligation to pay dividends to a shareholder derived from commercial activity between Guatemalan merchants, governed by Articles 134(3), 139, and 154 of the Commercial Code, and that under Article 1039, absent an arbitration clause, all actions arising from the Commercial Code had to be litigated through summary proceedings. The court concluded that the January 24, 2020 admission harmed Lisa's rights, granted the revocatoria, and directed Cerro Colorado to pursue the summary route. The ruling blocked an attempt to use the ordinary process to extinguish by prescription the fiscal-year-2013 dividends, preserving Lisa's shareholder rights against a procedurally improper attack.

II. Amparo and Constitutional Appeal

Cerro Colorado challenged the rejection through an amparo before the Fifth Chamber of the Civil and Commercial Court of Appeals, alleging violations of its rights to defense, petition, free access to the courts, and effective judicial protection. The Chamber denied the amparo on April 20, 2021, ordered Cerro Colorado to pay costs, and imposed a Q1,000 fine on its attorney. Cerro Colorado appealed to the Constitutional Court, where Reproductores Avícolas, S.A., as holder of Cerro Colorado's rights, reiterated its arguments.

On appeal, the petitioner argued that prescription is governed by Articles 1501 through 1516 of the Civil Code, so it was improper to apply Article 1039 of the Commercial Code; that under the principle of specialty in Article 13 of the Judiciary Act the ordinary route was the applicable residual procedure; that the trial judge had erroneously interpreted the dispute-resolution clause in the company's articles of incorporation; and that the complaint met all formal requirements already reviewed upon admission. Lisa, S.A. responded that no constitutional injury had occurred and that the petitioner was attempting to convert the amparo into a third-instance review.

In its <doc id="gua-01046-2020-00057-2022-09-20-a" /> of September 20, 2022, the Constitutional Court declared the appeal without merit and confirmed the first-instance amparo ruling. It held that a claim for extinctive prescription of dividend payment obligations between commercial entities is eminently commercial in nature and that Article 1039 expressly mandates summary proceedings. The Court further verified that Clause Twenty-Fifth of the company's articles of incorporation (Public Deed Fifty-Six of June 15, 1983, authorized by Notary Arturo Larraondo Samayoa) contained a submission pact providing for summary proceedings, consistent with Article 1039, and rejected the specialty argument on the ground that Article 96 of the Civil and Commercial Procedure Code supplies a residual ordinary route only where no specific procedure is designated. The Office of the Prosecutor for Constitutional Matters had requested confirmation. The ruling definitively closed the ordinary route as an instrument to attack Lisa's dividend rights.