Constitutional Court denies Lisa's amparo challenging cassation dismissal in shareholder exclusion case
Dec 5 2019
Constitutional Court
The Constitutional Court of Guatemala, in a ruling dated December 5, 2019 (Expediente 881-2019), denied the amparo filed by Lisa, S.A. against the Supreme Court of Justice, Civil Chamber. The challenged act was the November 22, 2018 ruling that dismissed Lisa's cassation appeal against the First Chamber of the Civil and Commercial Court of Appeals. That appellate ruling had reversed the first-instance judgment that ruled in Lisa's favor in the summary opposition to its exclusion as shareholder of Distribuidora Avícola del Norte, S.A. With this denial, no court has ruled on the merits of Lisa's exclusion, and the procedural path to a merits determination remains conditioned on curing the representation deficiency.
Lisa, S.A. filed a summary opposition lawsuit challenging its exclusion as shareholder of Distribuidora Avícola del Norte, S.A. before the Thirteenth Civil Court of First Instance of the department of Guatemala (Expediente 0116-2011-1084). In a ruling dated November 4, 2014, the first-instance judge declared the claim meritorious, annulled the exclusion resolution, and rejected the defendant's peremptory exceptions.
Distribuidora Avícola del Norte appealed to the First Chamber of the Civil and Commercial Court of Appeals. Before the appellate court, the defendant raised for a second time the exceptions of lack of legal personality and lack of standing, which were admitted for proceedings. In a ruling dated August 4, 2017, the Chamber rejected the lack of legal personality exception but sustained the lack of standing (falta de personería) exception, reversing the first-instance judgment and ordering Lisa to pay costs. Lisa's requests for clarification and expansion were denied.
Lisa filed a cassation appeal on grounds of form and substance (Expediente 01002-2018-0028). The Supreme Court of Justice, Civil Chamber, dismissed the appeal on November 22, 2018, holding that the challenged ruling lacked objective appealability because it did not address the merits of the dispute but only resolved a depurative exception.
Lisa, S.A. alleged violations of its rights to defense, due process, equality, free access to courts, and legality. It argued that the cassation dismissal left it in a state of legal uncertainty, given that a merits ruling existed at first instance and that Lisa held an acquired right under that judgment. Lisa contended that the appellate ruling constituted a definitive resolution sufficient to warrant cassation review, and that the lack of standing exception had already been rejected at first instance, meaning the procedural opportunity to raise it again had precluded.
Distribuidora Avícola del Norte argued that the petitioner failed to meet the procedural requirements for amparo and that the challenged ruling was legally sound. The Public Ministry (Ministerio Público) requested that constitutional protection be denied.
The Constitutional Court examined whether the cassation dismissal violated constitutional rights. It determined that the challenged authority acted in accordance with Article 633 of the Civil and Commercial Procedural Code in classifying the impugned resolution as non-definitive.
The Court invoked its own precedent to hold that rulings sustaining depurative exceptions are not definitive and therefore not subject to cassation. It cited its rulings in Expedientes 4234-2014, 3360-2009, and 3799-2008. The Court clarified that although the challenged ruling was formally a judgment rather than an interlocutory order, the distinction is immaterial: what matters is the content of the resolution, and if it did not decide the merits, the result is the same regardless of the formal denomination.
The Court also referenced its March 2, 2017 ruling in Expediente 3637-2016, a prior amparo brought by the same Lisa, S.A., where it stated that exceptions raised in the appellate stage could be proposed at any point during the proceedings and should be resolved in the corresponding judgment.
"el motivo por el cual se revocó la sentencia de primer grado fue eminentemente depurativo y no resolvió en definitiva el asunto que dio origen a la controversia objeto de la demanda, toda vez que únicamente le hace saber la deficiencia contenida en el documento en el cual pretendía acreditar la personería con la que actuaba" (Page 6)