Order

The Eleventh First Instance Civil Court of Guatemala granted Lisa, S.A.'s motion for revocation and nullified 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, not ordinary proceedings. The claim was rejected, leaving its admission without legal effect.

Case Background

Escobio, S.A. filed an ordinary claim against Lisa, S.A. seeking a declaration that the obligation to pay dividends had prescribed. The dividends at issue 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. The court admitted the claim on November 6, 2018, and Lisa filed a motion for revocation against that admission.

This was not Escobio's first attempt to obtain a prescription declaration over the same dividends. Lisa established that on February 22, 2017, Escobio had filed an identical claim before the Fourteenth First Instance Civil Court, where the judge, by resolution of August 3, 2018, had already granted Lisa's motion for revocation and ruled that ordinary proceedings were not the proper route, ordering the dispute be pursued through summary trial.

Defense of Lisa, S.A.

Lisa argued that revocation was warranted on the following grounds:

• Escobio had filed an identical claim in Proceeding No. 01164-2017-00228, where the court had already rejected the ordinary route and ordered summary trial, a resolution that was final and binding
• Escobio filed the new claim in contempt of the Fourteenth Court's ruling
• Escobio maliciously omitted the articles of incorporation (escritura constitutiva) of Escobio, S.A. again, 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
• Under Article 13 of the Judiciary Act (primacy of special provisions) and Article 1039 of the Commercial Code, summary proceedings were the only proper route

Court's Analysis

The court determined that Escobio's claim sought to declare the prescription of dividend payment obligations arising from shareholder assembly distribution resolutions, a dispute of commercial nature between two corporations. Applying Article 1039 of the Commercial Code, which provides that actions arising from its application shall be pursued through summary trial absent an arbitration agreement, the court concluded that ordinary proceedings were not the proper route.

The court emphasized that the claim arises from the exercise of a corporate right by the plaintiff as shareholder, reinforcing its commercial nature and the mandatory application of summary proceedings.

Ruling

• Granted the motion for revocation filed by Katty Aimé Reyes Martínez, acting as special judicial representative of Lisa, S.A.
• Revoked the November 6, 2018 resolution, leaving it without legal value or effect
• Rejected the claim filed by Escobio, S.A. for failure to comply with Articles 61(6) and 106 of the Civil and Commercial Procedural Code
• Ordered the return of documents attached to the complaint and respective copies

Legal Basis

• Article 1039, Commercial Code of Guatemala — actions arising from the Commercial Code are pursued through summary trial, absent an arbitration agreement
• Article 13, Judiciary Act — primacy of special provisions over general ones
• Articles 61 and 106, Civil and Commercial Procedural Code — requirements for the complaint, including the proper procedural route
• Articles 598 and 599, Civil and Commercial Procedural Code — grounds and procedure for the motion for revocation against procedural decrees

Signatories

• Name not identified in the document (Judge, Eleventh First Instance Civil Court)