On December 3, 2020, the Eleventh First Instance Civil Court granted Lisa, S.A.'s motion for revocation, nullified the admission of Escobio, S.A.'s ordinary dividend prescription claim, and rejected it from ordinary proceedings, ruling that the dispute must proceed through summary commercial trial.
Escobio, S.A. filed an ordinary claim against Lisa, S.A. seeking a declaration that the obligation to pay dividends decreed in annual general shareholder assemblies held between 2006 and 2011 had prescribed. Lisa challenged the admission of the claim through a motion for revocation, arguing that the dispute, being commercial in nature between two corporations, must proceed through summary commercial trial under Article 1039 of the Commercial Code. The Eleventh First Instance Civil Court granted the revocation, nullified the admission, and rejected the claim from ordinary proceedings. This was Escobio's second attempt to obtain a prescription declaration over the same dividends through ordinary proceedings, having been previously rejected by the Fourteenth First Instance Civil Court in <law id="gua-01164-2017-00228" />.
On December 3, 2020, the Eleventh First Instance Civil Court issued the <doc id="gua-01161-2018-01246-2020-12-03-a" />, granting Lisa, S.A.'s motion for revocation and nullifying the November 6, 2018 resolution that had admitted Escobio, S.A.'s ordinary claim for extinctive prescription of dividends. The court held that a dispute between two commercial entities over dividends decreed in shareholder assemblies must proceed through summary commercial trial under Article 1039 of the Commercial Code, not through ordinary proceedings.
Escobio sought a declaration that the obligation to pay dividends had prescribed. Those dividends originated from distribution resolutions adopted by the annual general shareholder assembly on November 6, 2006, August 25, 2008, December 16, 2009, April 28, 2010, and April 4, 2011. This was not Escobio's first attempt to extinguish the same obligation. On February 22, 2017, Escobio had filed an identical claim before the Fourteenth First Instance Civil Court in <law id="gua-01164-2017-00228" />, where the judge, by resolution of August 3, 2018, had already granted Lisa's motion for revocation, ruled that ordinary proceedings were not the proper route, and ordered the dispute pursued through summary trial. That resolution was final and binding, and Escobio filed the present claim in contempt of it.
Lisa further argued that Escobio maliciously omitted the articles of incorporation (escritura constitutiva) of Escobio, S.A., a foundational document for the claim that contains the express submission clause to summary proceedings and governs the form, method, timing, and manner of dividend distribution. Invoking Article 13 of the Judiciary Act, which establishes the primacy of special provisions, Lisa maintained that summary proceedings were the only proper route.
The court agreed, concluding that the claim arises from the exercise of a corporate right by the plaintiff as shareholder, which reinforced its commercial nature and the mandatory application of summary proceedings. It rejected the claim for failure to comply with Articles 61(6) and 106 of the Civil and Commercial Procedural Code and ordered the return of the documents attached to the complaint.
The ruling consolidated Lisa's defense against Escobio's repeated efforts to use ordinary proceedings to obtain a prescription declaration over dividends Lisa is entitled to collect. The rejection of the claim a second time, by a different court, evidences a pattern of abusive litigation aimed at extinguishing dividend payment obligations through the deliberate selection of an improper procedural route.
The ordinary prescription claim was rejected. If Escobio seeks to reiterate its extinctive prescription claim over dividends, it must do so through summary commercial trial under Article 1039 of the Commercial Code.