Lisa, S.A. rebuts Torre Nova's appeal, seeks confirmation of preliminary exception denial against counterclaim
Oct 29 2025
Lisa, S.A.
Lisa, S.A. filed this appellate brief before the First Civil and Commercial Chamber of the Court of Appeals on October 29, 2025, opposing the appeal filed by Inversiones Torre Nova, S.A. against the March 5, 2025 order issued by the Eleventh Multi-Judge Civil Court of First Instance. That order rejected both preliminary exceptions raised by Torre Nova against Lisa's counterclaim in the commercial summary proceeding Case No. 01161-2012-00206. The brief argues that Torre Nova's grievances lack legal basis and requests full confirmation of the appealed order, with costs.
The commercial summary proceeding was originally filed by Inversiones Torre Nova, S.A. and Sistemas y Equipos, S.A. against Lisa, S.A., claiming damages. In the order of May 10, 2022, the trial court upheld Lisa's preliminary exception for non-fulfillment of a condition, suspending the damages claim until Lisa's exclusion as a shareholder became final. Subsequently, through the order of March 21, 2024, BDT Investments Inc. was admitted as a third-party intervenor supporting Lisa. During the proceedings, Lisa filed a counterclaim against Torre Nova for damages arising from the frivolous lawsuits brought against it. Torre Nova raised preliminary exceptions against this counterclaim, both of which were rejected on March 5, 2025.
Torre Nova argued that attorney Tito Enoc Marroquín Cabrera's power of attorney was invalid due to the alleged absence of the interpreter's signature. Lisa rebuts this grievance with three arguments:
Formal validity of the mandate. The power of attorney is recorded in notarial protocol act number 44, authorized on October 6, 1999 by notary Mario Permuth, duly registered with the General Archive of Protocols and the General Mercantile Registry. Having never been challenged for falsity or nullity, it constitutes full proof under Articles 44, 45, and 186 of the Code of Civil and Commercial Procedure.
Nature of the challenge. Lisa argues that the alleged absence of the interpreter's signature, even if true, does not constitute grounds for a preliminary exception but rather a substantive nullity claim requiring an independent action. The exception for lack of legal standing, under Article 116 of the Code of Civil and Commercial Procedure, serves to purge procedural defects, not to resolve substantive questions about the validity of the underlying legal act.
Torre Nova's contradictory conduct. Lisa highlights that Torre Nova itself relied on the same mandate it now challenges: in its complaint filed on March 19, 2012, Torre Nova designated Lisa as reachable through attorney Marroquín Cabrera's office and attached a copy of the mandate. Under the principle of nemo potest venire contra factum proprium, Torre Nova cannot disavow an instrument it previously recognized and from which it benefited. Lisa characterizes this conduct as contrary to the principles of good faith and procedural loyalty.
Torre Nova argued that Lisa's counterclaim was contingent on the main lawsuit being resolved against the plaintiff in a final judgment. Lisa rebuts this grievance:
The damages are current, not conditional. The counterclaim is based on harms already sustained: Torre Nova's filing of multiple frivolous and unfounded lawsuits against Lisa, the litigation costs incurred defending across multiple jurisdictions, and the reputational and economic harm caused by those actions. These facts produced actual, present damage that does not depend on the outcome of the main proceeding.
Preliminary exceptions cannot resolve the merits. Lisa argues that Torre Nova's position seeks a premature ruling on the substantive merits of the damages claim, which exceeds the scope of a preliminary exception. The substantive viability of the counterclaim must be resolved in the final judgment, not at the incidental stage.