Exp. 01161-2017-00194 · Ordinary Action for Extinctive Prescription
The First Chamber of the Court of Appeals, Civil and Commercial Division, by ruling of August 31, 2023, declined to hear the appeal filed by Administradora de Restaurantes, S.A. for failure to state grievances. The first-instance order sustaining Lisa's incompetence exception and referring the dispute to arbitration became final.
Distribuidora Avícola del Norte, S.A. (later merged into Administradora de Restaurantes, S.A.) filed an ordinary civil action against Lisa, S.A. seeking a declaration that Lisa's right to collect dividends decreed by the company's general assemblies of shareholders had prescribed. Lisa raised five preliminary exceptions, including incompetence based on an arbitration clause in the plaintiff entity's corporate charter. The Eleventh Civil Court of First Instance sustained the incompetence exception and referred the dispute to arbitration. The First Chamber of the Court of Appeals, Civil and Commercial Division, declined to hear the appeal because the appellant failed to state grievances, and the first-instance ruling became final.
Distribuidora Avícola del Norte, S.A., through its general judicial representative Juan Luis Aguilar Salguero, filed an ordinary civil action against Lisa, S.A. seeking a declaration that the obligation to pay dividends decreed by the company's general assemblies of shareholders had prescribed. The claim is part of the pattern of actions by the Avícola Villalobos Group aimed at extinguishing Lisa's dividend rights.
Lisa raised five preliminary exceptions: incompetence, defective complaint, lack of standing in the plaintiff, failure to fulfill condition, and failure to fulfill term. The incompetence defense rested on Clause Twenty-Eight of Distribuidora Avícola del Norte's corporate charter (Public Deed Number 96 of July 12, 2002), which submits all disputes arising from the corporate contract to arbitration. Lisa additionally argued that the complaint was defective for failing to quantify the obligation whose prescription was sought, that the plaintiff's representative lacked authority for an act of disposition over shareholder rights, that the plaintiff had not complied with converting bearer shares to registered shares under Decree 55-2010, and that prescription was interrupted both by the express recognition of Lisa's rights in the 2011 exclusion resolution and by the embargo measures on Lisa's dividends decreed at the request of Distribuidora Avícola del Norte itself and other Avícola Group entities. Lisa characterized the claim as a transparent fraud upon the law: the same entities that have prevented Lisa from collecting its dividends through embargo orders now seek to have those rights declared prescribed.
The Eleventh Civil Court of First Instance focused its analysis on the incompetence exception. It verified the existence of the arbitration clause and determined that the dispute, concerning the prescription of the dividend payment obligation regulated by the corporate charter itself, falls within the clause's scope. The court applied the principle of pacta sunt servanda (Article 1519 of the Civil Code) and Articles 3(c) and 11(1) of the Arbitration Law, citing Constitutional Court precedent (case files 1792-2005 and 3348-2016). It sustained the incompetence exception, abstained from ruling on the four remaining exceptions, and did not award costs.
The ruling closed the ordinary judicial forum to the prescription claim, requiring the parties to proceed to arbitration. Lisa successfully prevented the attempt to extinguish its dividend rights from advancing in civil court.
Administradora de Restaurantes, S.A. (successor by merger of Distribuidora Avícola del Norte, S.A.), through attorney Elmar Baldemar Ambrocio Mazariegos, filed an appeal against the February 6, 2023 order. The First Chamber of the Court of Appeals, Civil and Commercial Division, granted the appellant a three-day hearing to state its grievances clearly and specifically. Administradora de Restaurantes did not respond within that period.
The Court of Appeals determined that, under Article 603 of the Code of Civil and Commercial Procedure, its jurisdiction is limited to matters expressly raised by the appellant. The failure to state grievances made it impossible for the Court to review the challenge. The Court cited binding precedent from the Constitutional Court (case file 5068-2012, judgment of February 22, 2013, reaffirmed in case files 186-2013 and 725-2013), establishing that failure to state grievances at the proper procedural moment precludes the appellate court from ruling.
The Court declined to hear the appeal and ordered the case file returned to the court of origin. With this ruling, the first-instance order referring the dispute to arbitration acquired full finality, definitively closing this avenue of attack by the Avícola Group against Lisa's dividend rights in Guatemalan civil jurisdiction.
| Date | Document | Issued by |
|---|---|---|
| Feb 6 2023 | Order | 11th Civil Court |
| Aug 31 2023 | Appeal Ruling | Court of Appeals |
The case is resolved in the judicial forum. The incompetence of the ordinary courts became final, and the dividend prescription dispute must be resolved in arbitration under the arbitration clause in Distribuidora Avícola del Norte's corporate charter.