Constitutional Court upholds Lisa's amparo; revocatoria is proper remedy to challenge procedural track
Feb 11 2021
Constitutional Court
The Constitutional Court, in its ruling of February 11, 2021, upholds the amparo granted to Lisa, S.A. and denies the appeal filed by San José El Recuerdo, S.A., requiring the Fifth Civil Court of First Instance to rule on the merits of the revocation motion through which Lisa challenged the admission of the extinctive prescription lawsuit in the ordinary track rather than the summary track. The ruling consolidates constitutional jurisprudence recognizing revocation as the proper remedy to challenge the procedural track under which complaints are admitted in civil proceedings.
San José El Recuerdo, S.A. filed an ordinary lawsuit for extinctive prescription of the obligation to pay dividends against Lisa, S.A. before the Fifth Civil Court of First Instance of the department of Guatemala (file 01010-2020-00030). On January 24, 2020, the court admitted the complaint in the ordinary track and served Lisa. Lisa filed a revocation motion on February 6, 2020, arguing that the dispute should proceed as a summary trial under Article 1039 of the Commercial Code (both parties are commercial entities) and under the twenty-fifth clause of San José El Recuerdo's articles of incorporation, which provides that disputes between the company and its shareholders shall be resolved in summary proceedings. The court denied the revocation, holding that it was not the proper remedy and that Lisa's arguments should be raised through preliminary exceptions.
Lisa filed an amparo action before the Third Civil and Commercial Court of Appeals, which granted constitutional protection on August 7, 2020, ordering the lower court to issue a new ruling addressing the arguments raised in the revocation motion. San José El Recuerdo appealed this decision.
San José El Recuerdo argued that the first-instance amparo ruling did not address the actual dispute, since the issue was not whether revocation is proper against decrees (which it conceded is clear) but rather the substance of the challenge. It further argued that Lisa is no longer a shareholder or partner of San José El Recuerdo, so the contractual clause requiring summary proceedings does not apply to Lisa. Finally, it contended that no constitutional injury existed because Lisa had filed preliminary exceptions raising the same arguments, demonstrating that revocation was not the appropriate vehicle.
Lisa maintained that the central issue was precisely the viability of the revocation motion, because by denying it, the lower court declined to examine Lisa's argument that the summary track was the correct procedural route. Lisa pointed to the twenty-fifth clause of San José El Recuerdo's articles of incorporation, which expressly provides that disputes between the company and its shareholders shall be resolved in summary proceedings. Although Lisa is not currently a shareholder, the very object of the lawsuit (declaring the dividend payment obligation extinguished by prescription) is a matter arising from the shareholder relationship and commercial law, making the summary track applicable. The Attorney General's Office, through the Constitutional Affairs Division, endorsed the first-instance amparo tribunal's reasoning and requested confirmation of the ruling.
The Constitutional Court determined that, contrary to San José El Recuerdo's contention, the dispute did concern the viability of revocation as a means to challenge the procedural track. The challenged ruling did not decide on the merits of whether the case should proceed as ordinary or summary, but rather rejected the revocation on the ground that it was not the proper remedy, directing Lisa to raise the issue through preliminary exceptions.
The Court applied the standard established in its ruling of November 23, 2017 (file 5315-2015), under which revocation is the proper remedy to seek reexamination of the admission of a complaint in civil proceedings, provided that the deficiency identified cannot be addressed through preliminary exceptions. Because Lisa's objection (that the lawsuit should have been admitted in the summary track, not the ordinary track) does not fall within the grounds for preliminary exceptions under Article 116 of the Civil and Commercial Procedural Code, revocation was the appropriate remedy.
The Court reinforced its conclusion by citing an analogous case (file 2919-2019, ruling of October 17, 2019), in which the procedural track for an extinctive prescription lawsuit over dividend payment obligations was challenged, and in which the Court concluded that amparo was warranted when the lower court failed to conduct the legally required analysis.