Exp. 01046-2022-00986 · Commercial Summary Action for Extinctive Prescription
The Civil Chamber of the Supreme Court of Justice dismissed the cassation appeal by Avícola Las Margaritas, S.A. on October 7, 2025, confirming that Lisa, S.A.'s dividends are not subject to prescription and imposing costs and a statutory fine on the appellant.
Avícola Las Margaritas, S.A. (successor by merger of Importadora de Alimentos de Guatemala, S.A.) filed a summary mercantile action for extinctive prescription against Lisa, S.A., seeking a judicial declaration that the obligation to pay dividends for fiscal year 2013, decreed at the June 10, 2014 General Shareholders' Assembly, was extinguished by prescription. Lisa answered in the negative and raised peremptory exceptions grounded in the absence of exigibility, the existence of precautionary embargoes on its dividends, and the interruption of prescription. The Fifth Multi-Judge Civil Court of First Instance dismissed the claim and upheld all of Lisa's defenses, a result confirmed on appeal by the First Chamber of the Court of Appeals and, on cassation, by the Civil Chamber of the Supreme Court of Justice on October 7, 2025, consolidating Lisa's victory at all three judicial levels.
The Fifth Multi-Judge Civil Court of First Instance issued its judgment on June 11, 2024, in the summary mercantile action for extinctive prescription filed by Avícola Las Margaritas, S.A. (successor by merger of Importadora de Alimentos de Guatemala, S.A.) against Lisa, S.A., dismissing the claim to extinguish by prescription the obligation to pay dividends for fiscal year 2013 as decreed at the June 10, 2014 shareholders' assembly, at a rate of Q837.60 per share.
The court determined that the assembly expressly delegated to the Board of Directors the determination of the form and timing of payment, as provided in Clause Sixteen of the articles of incorporation. Because the record contained no evidence that the Board of Directors had ever set a payment date and form, nor any evidence that other shareholders had been paid, the court concluded there was no certainty as to when the obligation became enforceable, making it impossible to compute the prescription period. The court rejected application of Article 675 of the Commercial Code (immediate enforceability of obligations without a set term), holding that the assembly had established a mechanism for determining the payment date by delegating it to the Board of Directors.
The court upheld all five of Lisa's peremptory exceptions: lack of veracity, lack of exigibility, lack of free disposition over the dividends due to precautionary embargoes in place since 1999 requested by the plaintiff itself and Avícola Villalobos Group entities, violation of third-party rights through precautionary measures, and interruption of prescription through judicial and extrajudicial actions. Lisa presented evidence that the Avícola Villalobos Group owed it $128,964,121.00 in retained and unpaid dividends, and that the total value of retained shares and dividends amounted to $334,578,071.00. Costs were imposed on the plaintiff.
The first-instance judgment constituted a complete victory for Lisa: not only was prescription rejected, but the court recognized the existence of systematic embargoes on Lisa's dividends requested by the same entities now seeking to declare the payment obligation prescribed.
The First Chamber of the Court of Appeals for Civil and Commercial Matters, in its ruling of November 4, 2024, partially granted the appeal by Avícola Las Margaritas but confirmed the denial of the prescription claim. The Chamber upheld Lisa's negative answer and the exception for lack of veracity, but revoked the exceptions grounded in embargoes, free disposition, third-party rights, and interruption of prescription.
The Chamber examined Clause Sixteen of the articles of incorporation and confirmed that, absent evidence that the Board of Directors had exercised its authority to set the payment date and form, and absent proof of payment to other shareholders, the prescription period could not be computed. Regarding the revoked exceptions, the Chamber held that precautionary measures decreed by third parties over Lisa's assets are independent of Lisa's right to collect dividends and "cannot at any point interrupt the prescription sought, and by the same token cannot be used as instruments to evade their responsibility."
The net outcome of the appeal did not alter the plaintiff's defeat. The legal basis for the denial shifted significantly: while the first-instance court relied on both the absence of exigibility and the embargoes, the Chamber sustained the denial solely on the uncertainty surrounding exigibility. For Lisa, the confirmation on appeal reinforced the position that its dividends cannot be declared prescribed so long as the moment of exigibility has not been established.
Lisa, S.A. filed its defense plea before the Civil Chamber of the Supreme Court of Justice on July 3, 2025, opposing Avícola Las Margaritas' cassation appeal. Lisa argued that the Court of Appeals did consider Article 675 of the Commercial Code but reasonably discarded it upon finding that the assembly itself departed from the rule of immediate enforceability by delegating to the Board of Directors the authority to determine the form and date of payment. Lisa maintained that the obligation became a conditional obligation under Article 1592 of the Civil Code, subject to a suspensive condition (Article 1269) that was never fulfilled, preventing any prescription period from running.
Lisa further identified a contradiction in the plaintiff's position: the complaint asserted that dividends were enforceable the day after the shareholders' meeting under Article 675, but if that argument were correct, the period would begin running on the same day as the meeting, not the following day, exposing the plaintiff's imprecision in determining the starting point of prescription. Lisa requested dismissal of the appeal with costs and a statutory fine.
The Civil Chamber of the Supreme Court of Justice dismissed the cassation appeal on October 7, 2025. Avícola Las Margaritas had invoked two complementary sub-motives: violation of law by non-application of Article 675 of the Commercial Code, and improper application of Articles 132 and 669 of the same Code.
The Chamber analyzed both sub-motives jointly. On improper application, it found that the Court of Appeals correctly grounded its decision in Articles 1508 of the Civil Code and Articles 132 and 669 of the Commercial Code, concluding that both provisions were appropriate to resolve the controversy: Article 132 governs the competence of the general assembly as the supreme corporate body, and Article 669 establishes the principles of verdad sabida and buena fe guardada. On violation by non-application, the Chamber held that, having confirmed the adequacy of the provisions applied, it could not proceed to analyze whether omitted provisions should have been applied, because under the complementarity doctrine, only when the provisions used in the ruling are found inappropriate does the analysis of allegedly omitted provisions become viable.
Costs and a fine of Q100.00 were imposed on the appellant.
The dismissal of cassation definitively closes this extinctive prescription claim, consolidating Lisa's victory at all three judicial levels.
| Date | Document | Issued by |
|---|---|---|
| Jun 11 2024 | Order | 5th Civil Court |
| Nov 4 2024 | Appeal Ruling | Court of Appeals |
| Jul 3 2025 | Cassation Appeal | Lisa, S.A. |
| Oct 7 2025 | Cassation Ruling | Supreme Court |
This proceeding has concluded definitively. The extinctive prescription claim was rejected at all three judicial levels, confirming that the obligation to pay dividends to Lisa, S.A. has not been extinguished.