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 its <doc id="gua-01049-2020-00099-2025-03-18-a" /> of 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.
On January 29, 2020, Avícola Las Margaritas, S.A. filed a summary action for extinctive prescription against Lisa, S.A., seeking a declaration that the obligation to pay the 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 Importadora de Alimentos de Guatemala, S.A., responded with three preliminary exceptions under Articles 116 and 120 of the Code of Civil and Commercial Procedure: territorial incompetence, defective claim, and lack of compliance with the time period to which the asserted right is subject.
Lisa's substantive defense, raised through the time-period exception, frames the prescription action as an act in fraud of law. 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 the dividends were decreed, a resolution communicated on May 3, 2011 that expressly recognized Lisa's right by stating that Lisa would be liquidated its corresponding share, including the very dividends now claimed to be prescribed. Second, entities of the same Avícola conglomerate obtained and executed embargo orders over Lisa's dividends, preventing Lisa from collecting them. On Lisa's account, the same group that embargoed the dividends and blocked their collection now seeks a judicial declaration that the obligation to pay them has expired.
Avícola Las Margaritas countered that Lisa's credit right arose the moment each assembly decreed the distribution of profits, that the dividends were available from the day following each assembly, and that the five-year prescription period runs from that date. It asserted that the shareholder exclusion was resolved at the assembly of April 5, 2011, and that even if the exclusion had interrupted prescription, more than five years elapsed before the complaint was filed on January 29, 2020. It further argued that Lisa never filed a judicial claim or precautionary measure specifically seeking collection of the dividends, the only acts that, in its view, could have interrupted prescription.
On March 18, 2025, the Sixth Multi-Judge Civil Court of First Instance issued its <doc id="gua-01049-2020-00099-2025-03-18-a" />, denying all three preliminary exceptions and condemning Lisa to pay costs as the losing party under Article 138 of the Judiciary Act.
On incompetence, the court grounded its jurisdiction in Article 34 of the Judiciary Act, which authorizes Guatemalan courts to summon foreign persons in actions relating to legal acts carried out in Guatemala, together with 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). Clause Twenty-Fifth submits all shareholders to the forum of the corporate domicile, and Clause Third fixes that domicile in Guatemala; as a shareholder of a Guatemalan company, Lisa is subject to that forum. On the defective-claim exception, the court held that the complaint satisfied the formal requirements of Articles 61, 106, and 107 of the Code of Civil and Commercial Procedure, and that the exception serves only to cure defects of form, not to contest the substance of the claim.
On the time-period exception, the court remitted Lisa's arguments to the answer stage, finding that the exclusion, the plaintiff's recognition of Lisa's rights, and the embargoes on dividends are matters proper to the answer rather than to a preliminary exception. The practical consequence is that Lisa's core defenses were not adjudicated: the allegation that Avícola Las Margaritas seeks to prescribe dividends that its own group embargoed, and the contradiction between recognizing the obligation to liquidate Lisa's share upon exclusion and then seeking its prescription, survive as substantive defenses to be resolved at the answer and, as applicable, at judgment.
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.