Administradora de Restaurantes 2012–2013 Dividend Prescription Claim Against Lisa Fails

I. First Instance

Order

Administradora de Restaurantes, S.A. (successor by merger of Compañía Importadora La Perla, S.A.) filed an ordinary prescription action against Lisa, S.A., seeking a judicial declaration that the obligation to pay dividends decreed at La Perla's Annual General Shareholders' Assembly of May 28, 2013, which approved distribution of profits for fiscal year 2012 as well as accumulated profits, had been extinguished by prescription. The complaint was filed in November 2018 and admitted on November 19 of that year. The plaintiff attached only a certified excerpt of a single agenda item from the assembly, without the complete minutes, published convocations, or proof of quorum.

Lisa appeared on January 29, 2019 and filed five preliminary exceptions: incompetence, defective complaint, lack of standing in the plaintiff, unfulfilled condition, and unfulfilled term. Lisa argued that the complaint lacked the foundational documents required by Articles 106, 107, and 109 of the Civil Procedure Code, that it failed to establish the amount or form of payment of the dividends whose prescription was sought, and that clause twenty-eight of La Perla's articles of incorporation establishes arbitration as the forum for dispute resolution. Lisa also argued that the same Avícola Group entities that obtained embargo orders on its dividends and shares in proceedings 01045-2012-00242, 01045-2012-00210, and 01044-2012-00279 were now seeking to declare that right prescribed, in what it characterized as a manifest fraud upon the law.

The court sustained the defective complaint exception on two grounds: the plaintiff attached only a partial certification of one agenda item without the complete assembly minutes, and the complaint made no reference to the arbitration clause in the articles of incorporation. The exceptions for incompetence, lack of standing, unfulfilled condition, and unfulfilled term were denied. The complaint was rejected for processing and costs were assessed against the plaintiff.

The ruling was issued on August 4, 2023, over four years after the exceptions were filed. The action fits within the Avícola Group's broader pattern of using the legal system to prevent Lisa from collecting dividends owed to it as holder of 25% of La Perla's equity: the same entity that decreed dividend distributions at the 2013 assembly, and that embargoed Lisa's dividends in related proceedings, filed this action to declare Lisa's right to collect those very dividends extinguished by prescription.

II. Appeal

Appeal Ruling

The First Chamber of the Civil and Commercial Court of Appeals heard Administradora de Restaurantes' appeal. The appellant raised a single grievance: that the trial judge misinterpreted Article 107 of the Civil Procedure Code by requiring the complete assembly minutes as a foundational document. Administradora argued that the sole purpose of the lawsuit was to determine whether the five-year prescription period had elapsed, and that quorum, individual dividend amounts, and shareholder identities were not contested facts.

The Court of Appeals confirmed the first-instance ruling in full, concluding that the plaintiff was required to comply with all requirements of Articles 106 and 107, either by attaching the foundational documents or by identifying them with sufficient particularity and designating the archive where the originals could be found. The plaintiff did neither. The appeal was denied and costs were assessed against the appellant.

Appeal Ruling

Administradora filed clarification and extension remedies against the appellate ruling. In the clarification request, it reiterated that the certified agenda excerpt was sufficient to support the claim. In the extension request, it argued that the court should have ruled on the incompetence exception related to the arbitration clause, citing an alleged contradiction between the denial of the incompetence exception and the sustaining of the defective complaint exception based on the same clause.

Lisa responded that the clarification arguments were a reiteration of grievances already resolved, and that the contradiction was attributable to Administradora itself, which had argued on appeal that the arbitration clause was inapplicable to the case.

The court denied both remedies. It characterized the extension argument as fallacious, noting that Administradora's own counsel had contradicted herself across procedural stages by arguing on appeal that the arbitration clause was inapplicable and then in the extension request that the incompetence exception should have been sustained on the basis of that same clause. The dismissal of the lawsuit was confirmed in full.

III. Cassation

Cassation Ruling

The Civil Chamber of the Supreme Court summarily rejected Administradora de Restaurantes' cassation appeal. The Court determined that the challenged resolution lacked objective appealability: under Article 620 of the Civil Procedure Code, a resolution confirming a defective complaint exception does not prevent renewal of the litigation, which deprives it of the definitiveness required for cassation review. Administradora formally retains the ability to correct the identified defects and file a new complaint, but the rejection across all three instances confirms that the procedural approach lacked an adequate legal foundation.

The cassation proceedings were ordered archived, leaving the dismissal of the lawsuit final.

The outcome across all three instances is significant in the context of the Avícola Group's strategy of using prescription actions to extinguish Lisa's shareholder rights. The complaint sought to declare prescribed dividend rights that the plaintiff entity itself, through its predecessor La Perla, was obligated to pay to Lisa as holder of 25% of the equity. Lisa's rights to the dividends decreed at the May 2013 assembly remain in force.