Lisa, S.A. seeks dismissal of Avícola Villalobos cassation for formal defects and failure to prove damages
Aug 11 2025
Lisa, S.A.
Lisa, S.A. filed its brief for the hearing before the Civil Chamber of the Supreme Court of Justice, opposing the cassation appeal on grounds of substance brought by Avícola Villalobos, S.A. The hearing was scheduled for August 12, 2025. This filing constitutes Lisa's defense at the final stage of a commercial summary proceeding for damages that Avícola Villalobos initiated in 2012, alleging that the acts leading to Lisa's exclusion as shareholder caused it harm. Both the first-instance ruling of July 4, 2023 and the appellate ruling of July 16, 2024 dismissed the lawsuit in its entirety, finding that the plaintiff failed to prove the existence of damages or their causal connection to Lisa's conduct.
Avícola Villalobos, S.A. sued Lisa, S.A. in a commercial summary proceeding seeking damages allegedly caused by the acts that led to Lisa's exclusion as shareholder, decided at a general shareholders' assembly on April 4, 2011. The complaint categorized the claimed damages as present and future personal damages (reputational harm), determined and undetermined patrimonial damages (legal defense costs), and generic losses, requesting a generic condemnation under Article 150 of the Judiciary Act.
Lisa answered the complaint in the negative and raised six peremptory defenses. In its defense, Lisa argued that its legal actions were motivated exclusively by Avícola Villalobos's wrongful withholding of dividends for over seventeen years, supporting this with a certified accounting statement showing that the twenty-five entities comprising the Avícola Villalobos Group had failed to pay $5,481,851.00 annually in dividends since the fiscal year ending June 30, 1999. Lisa also invoked the Bermuda Supreme Court judgment of September 5, 2008, which condemned a Villalobos-linked entity to pay over $1.9 million, finding that it operated an off-the-books accounting system.
The Thirteenth Civil Court of First Instance upheld three of Lisa's peremptory defenses (lack of truthfulness in the alleged facts, non-existence of the claimed damages, and inapplicability of damages for acts of third parties), granted Lisa's negative answer, and dismissed the lawsuit with costs against Avícola Villalobos. The First Civil and Commercial Court of Appeals affirmed the ruling in full, emphasizing that the plaintiff failed to prove damages or the causal nexus with Lisa's conduct. Avícola Villalobos filed a cassation appeal on grounds of substance, alleging error of fact in the assessment of evidence through distortion and erroneous interpretation of Article 228 of the Commercial Code.
Lisa argues that the cassation fails to comply with Article 619(4) of the Code of Civil and Commercial Procedure by citing Articles 620 and 621 as the basis for admissibility, when the applicable enabling provision is Article 1039 of the Commercial Code, given that the underlying proceeding is a commercial summary trial.
Avícola Villalobos alleges that the appellate court distorted the content of two notarial acts (dated April 26 and May 3, 2011) by recognizing only the firm exclusion without extracting Lisa's responsibility for ten publications allegedly constituting a smear campaign.
Lisa responds in two parts. As to the first alleged distortion, Lisa argues that those documents merely record the corporate decision of exclusion and its finality, without constituting a judicial declaration imposing an obligation to pay damages. While Article 228 of the Commercial Code establishes a iuris tantum presumption of the excluded shareholder's liability, this must be read alongside Articles 1645 and 1648 of the Civil Code and the Supreme Court's precedent (cassation 269-2003), which require proof of three elements: breach, actual damage, and causal nexus. The presumption facilitates the attribution of conduct but does not substitute proof of damage.
As to the second alleged distortion, Lisa argues that the appellant failed to identify the publications as authentic documents under Article 619(6), precluding their review in cassation. Substantively, the appellate court correctly distinguished between the existence of the publications and the attribution of authorship to Lisa, concluding that they were carried out by persons unrelated to Lisa without any proven representative capacity.
Avícola Villalobos contends that Article 228 of the Commercial Code makes damages automatic upon a firm exclusion. Lisa rejects this reading, arguing that the provision presumes culpability of the excluded shareholder but does not eliminate the burden of proving the existence of damage, its individualization, and the causal relationship. The plaintiff was required to establish in the main proceeding what patrimonial losses it suffered and what lawful gains it failed to receive, which it did not do. Its sole piece of evidence was a copy of a lawsuit filed by Margarita Castillo in Ontario, Canada, which involved neither Lisa nor Avícola Villalobos as parties and contained no act attributable to Lisa.
Lisa highlights that during the evidentiary period, Avícola Villalobos submitted a single document: the notarized copy of Margarita Castillo's complaint before the Superior Court of Ontario, Canada. That document concerns disputes between Margarita Castillo and Juan Arturo Gutiérrez and Juan Guillermo Gutiérrez regarding Xela Enterprises Ltd., Tropic International Limited, Fresh Quest, Inc., and 696096 Alberta Ltd. Lisa points out that neither Lisa nor Avícola Villalobos appears as a party in that lawsuit, that it contains no act attributable to Lisa against Avícola Villalobos, and that the annexed documents (financial statements, emails, sworn declarations) relate exclusively to the management of Canadian entities with no connection to the present case.
The first-instance court granted probative value only to Lisa's economic study, the copy of Margarita Castillo's lawsuit, and the parties' depositions, concluding that the plaintiff failed to meet its procedural burden of proving the constitutive facts of its claim. The Court of Appeals confirmed that the alleged defense costs were neither quantified nor causally linked to illicit acts by Lisa, and that no evidence existed of reputational harm to Avícola Villalobos or lost business opportunities.
Lisa's brief exposes a pattern of contradictory conduct by Avícola Villalobos. Lisa's exclusion as shareholder was grounded in the legal actions Lisa filed to recover dividends withheld for over seventeen years. Avícola Villalobos then sued Lisa for the alleged damages caused by those same legal actions, in effect seeking a condemnation for the fact that Lisa exercised its rights as a shareholder before the courts. Both levels of jurisdiction that adjudicated the merits rejected this claim, confirming that the legitimate exercise of legal actions does not in itself constitute a damage-generating event.
Lisa characterizes the damages lawsuit as an attempt to coerce and silence Lisa, punishing it for having exercised the legal remedies available to it as a minority shareholder facing the wrongful withholding of dividends.