Cerro Colorado 2014 Dividend Prescription Action Against Lisa Dismissed

I. First Instance

Order

Cerro Colorado, S.A. filed an ordinary lawsuit for extinctive and liberatory prescription of dividend payment obligations against Lisa, S.A., alleging 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. The complaint was admitted by resolution of January 24, 2020. Lisa filed a revocatoria, arguing 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 Fifth Civil Court of First Instance structured its analysis around three questions: the mercantile nature of the claim, the applicable procedural route, and the absence of an arbitration agreement. The court determined that the obligation to pay dividends to a shareholder derived from a commercial activity between Guatemalan merchants, governed by Articles 134(3), 139, and 154 of the Commercial Code. 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 resolution harmed Lisa's rights by admitting the complaint in ordinary proceedings.

Lisa, S.A.'s revocatoria was granted, and Cerro Colorado's extinctive prescription complaint was rejected.

This ruling blocked an action aimed at extinguishing by prescription the dividends from fiscal year 2013, constituting a procedural victory for Lisa that preserved its shareholder rights against an attempt to use the ordinary route to circumvent the legally mandated summary procedure.

II. Amparo and Constitutional Appeal

Amparo Ruling

Cerro Colorado filed 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 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.

The petitioner advanced four arguments: (i) prescription is governed by Articles 1501 through 1516 of the Civil Code, so it was improper to apply Article 1039 of the Commercial Code; (ii) under the principle of specialty in Article 13 of the Judiciary Act, the ordinary route was the applicable residual procedure; (iii) the judge erroneously interpreted the dispute-resolution clause in the company's articles of incorporation; and (iv) the complaint met all formal requirements that had already been reviewed upon admission. Reproductores Avícolas, S.A., as holder of Cerro Colorado's rights, reiterated these arguments.

Lisa, S.A. maintained that no constitutional injury had occurred, that the trial judge ruled in compliance with applicable law, and that the petitioner's claim was an attempt to convert the amparo into a third-instance review.

The Constitutional Court rejected each of the petitioner's arguments. It established that a claim for extinctive prescription of dividend payment obligations between commercial entities is eminently commercial in nature, regulated by the Commercial Code, and that Article 1039 expressly mandates summary proceedings. The Court verified that Clause Twenty-Fifth of the company's articles of incorporation (Public Deed Fifty-Six, dated June 15, 1983, authorized by Notary Arturo Larraondo Samayoa) contained a submission pact providing for summary proceedings, consistent with Article 1039. The Court rejected the specialty argument, holding that Article 96 of the Civil and Commercial Procedure Code applies as a residual route only when no specific procedure is designated, which was not the case. The Office of the Prosecutor for Constitutional Matters requested confirmation of the appealed ruling.

The Court declared the appeal without merit and confirmed the first-instance amparo ruling of April 20, 2021. This result definitively closed the ordinary route as an instrument to attack Lisa's dividend rights, consolidating the protection of its shareholder rights by preventing an extinctive prescription action from being processed through an improper procedure.