Exp. 01049-2020-00099 · Summary Action for Extinctive Prescription
The Sixth Civil Court of First Instance denied all three preliminary exceptions filed by Lisa, S.A. (territorial incompetence, defective claim, and lack of compliance with the applicable time period) in an order dated March 18, 2025, condemning Lisa to pay costs. The case advances to the answer stage and merits determination.
Avícola Las Margaritas, S.A. filed a summary action for extinctive prescription against Lisa, S.A., seeking a declaration that the obligation to pay dividends decreed at shareholder assemblies of Importadora de Alimentos de Guatemala, S.A. is time-barred. Lisa raised preliminary exceptions of territorial incompetence, defective claim, and lack of compliance with the applicable time period, all of which were denied by the Sixth Civil Court of First Instance. Lisa contends that prescription was interrupted because entities of the same Avícola group embargoed its dividends and prevented their collection, and that the plaintiff itself recognized the obligation when it resolved to exclude Lisa as a shareholder. The case is proceeding to the merits.
Avícola Las Margaritas, S.A. filed a summary action for extinctive prescription on January 29, 2020, against Lisa, S.A., seeking a declaration that the obligation to pay dividends decreed at shareholder assemblies of Importadora de Alimentos de Guatemala, S.A. is time-barred. Lisa, an entity incorporated in Panama and a shareholder of the plaintiff company, raised three preliminary exceptions: territorial incompetence, defective claim, and lack of compliance with the applicable time period.
The Sixth Civil Court of First Instance denied all three exceptions and condemned Lisa to pay costs. The court grounded its jurisdiction in Article 34 of the Judiciary Act and the forum-selection clause in the articles of incorporation of Importadora de Alimentos de Guatemala, S.A. (Public Deed 168, authorized on November 13, 1996). On the defective claim, the court found that the complaint met the formal requirements of Articles 61, 106, and 107 of the Code of Civil and Commercial Procedure. On the time-period exception, the court remitted Lisa's arguments to the answer stage.
Lisa's substantive arguments, which form the core of its defense, were not resolved at this stage. Lisa contended that prescription was interrupted on two grounds: first, the plaintiff itself resolved to exclude Lisa as a shareholder at the same assembly where dividends were decreed (communicated on May 3, 2011), expressly recognizing Lisa's right by stating that Lisa would be liquidated its corresponding share, including the very dividends now subject to the prescription claim. Second, entities of the Avícola conglomerate obtained embargo orders over Lisa's dividends, preventing Lisa from collecting them. Lisa characterized the prescription action as an act in fraud of law: the same party that embargoed the dividends and prevented their collection now seeks to declare the payment obligation time-barred.
Avícola Las Margaritas contended that Lisa's credit right arose the moment each assembly decreed the distribution of profits, that dividends were available from the day following each assembly, and that the five-year prescription period runs from that date. It asserted that Lisa's exclusion, even if it had interrupted prescription, occurred more than five years before the complaint was filed.
The court did not analyze the merits of the interruption-by-embargo argument or the contradiction between recognizing the obligation upon excluding Lisa and then seeking its prescription. These defenses remain pending resolution at the answer stage and, as applicable, at judgment.
| Date | Document | Issued by |
|---|---|---|
| Mar 18 2025 | Order | 6th Civil Court |
Lisa, S.A. must file its answer and articulate its substantive defenses, including prescription interruption by embargo orders and the plaintiff's own recognition of the obligation upon excluding Lisa as a shareholder. The court will determine at judgment whether the dividend payment obligation is time-barred.