Denies Lisa's preliminary exceptions, orders dividend prescription case to proceed to merits
Mar 18 2025
6th Civil Court
The Sixth Civil Court of First Instance of Guatemala ruled on preliminary exceptions filed by Lisa, S.A. in the summary proceeding for extinctive prescription brought by Avícola Las Margaritas, S.A. The court denied all three exceptions (territorial incompetence, defective claim, and lack of compliance with the applicable time period) and condemned Lisa to pay costs. The ruling clears the way for the prescription claim over decreed dividends to proceed to the merits, where Lisa must now articulate its substantive defenses, including the embargo and prescription-interruption arguments that the court deemed improper for the preliminary stage.
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 is an entity incorporated in Panama and a shareholder of the plaintiff company. Within the statutory period, Lisa raised three preliminary exceptions under Articles 116 and 120 of the Code of Civil and Commercial Procedure.
Territorial incompetence. Lisa argued that, as a commercial entity incorporated in Panama with its seat outside Guatemala, the court lacked jurisdiction. It invoked Article 12 of the Code of Civil and Commercial Procedure, contending that the competent court for a personal action should be a court of first instance in the Republic of Panama.
Defective claim. Lisa argued that the complaint lacked clarity and precision because it did not specify the amount of the obligation whose prescription was sought or the accessory obligations. Lisa contended that the articles of incorporation (escritura constitutiva) provide that the General Assembly must decree the distribution of profits and the Board of Directors (Consejo de Administración) must determine the date, form, and payment, conditions the plaintiff failed to show were met.
Lack of compliance with the applicable time period. Lisa raised two grounds for this exception. 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 upheld the competence of Guatemalan courts based on Articles 33 and 34 of the Judiciary Act and the forum-selection clause in the articles of incorporation. It argued the complaint met the requirements of Articles 50, 61, 106, and 109 of the Code of Civil and Commercial Procedure. On the time-period issue, it 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 even if the exclusion of Lisa as a shareholder had interrupted prescription, it occurred more than five years before the complaint was filed, and that Lisa did not file a judicial claim or precautionary measure specifically seeking collection of dividends that could interrupt the running of prescription.
On incompetence. The court grounded its jurisdiction in Article 34 of the Judiciary Act, which establishes the competence of Guatemalan courts to summon foreign persons when the action relates to acts or legal transactions carried out in Guatemala. The court found that the articles of incorporation of Importadora de Alimentos de Guatemala, S.A. (Public Deed 168, authorized on November 13, 1996, by Notary Héctor René López Sandoval) provide in Clause Twenty-Fifth that all shareholders submit to the forum of the corporate domicile, and in Clause Third that the company is of Guatemalan nationality domiciled in Guatemala. As Lisa is a shareholder of that company, the court concluded it has jurisdiction.
On defective claim. The court determined that the complaint meets the formal requirements of Articles 61, 106, and 107 of the Code of Civil and Commercial Procedure, and that the preliminary exception for defective claim is designed to cure defects of form, not to challenge the substance of the claim. Lisa's arguments concerning the payment conditions established in the articles of incorporation belong in the answer to the complaint.
On lack of compliance with the time period. The court found that Lisa's arguments regarding its exclusion as a shareholder, the plaintiff's recognition of Lisa's rights, and the embargoes on dividends are matters proper for the answer to the complaint. The court determined that Lisa's submission did not demonstrate a lack of compliance with a time period or a condition that would bar consideration of the claim.
Strategic note. Lisa's arguments regarding the interruption of prescription by embargo orders and the plaintiff's own recognition of the dividend obligation were not analyzed on the merits. The court remitted them to the answer stage. This means that the allegation that Avícola Las Margaritas seeks to prescribe dividends that it (or entities of the same group) embargoed, as well as the contradiction between recognizing the obligation to liquidate Lisa's dividends upon exclusion and then seeking their prescription, remain as substantive defenses pending resolution.