The Eleventh Civil Court denied all seven preliminary exceptions raised against La Perla's damages counterclaim, allowing the case to proceed to the merits.

Case Background

This case is the commercial summary proceeding brought by Lisa, S.A. against Compañía Importadora La Perla, S.A., later replaced by Administradora de Restaurantes, S.A. through merger by absorption. In its brief of March 6, 2015, La Perla answered the claim and counterclaimed against Lisa, S.A. for damages it attributes to various acts of Lisa, S.A.

Lisa filed seven preliminary exceptions seeking to prevent La Perla's counterclaim from being heard on the merits: (a) incompetence, (b) defective complaint, (c) lis pendens, (d) lack of standing of the defendant, (e) lack of standing of the plaintiff, (f) prescription, and (g) lack of legal representation of the counterclaimant.

Preliminary Exceptions and Court's Analysis

Incompetence. Lisa argued that certain damages arose from lawsuits filed abroad and that, under Article 16 of Decree-Law 107, the competent court was that of the place where the damages occurred. The court determined that, under Article 12 of the Code of Civil and Commercial Procedure, the competent court for personal actions is the First Instance court of the department where the defendant is domiciled, and that both parties are domiciled in the Department of Guatemala. Lisa offered no evidence to support its assertions.

Defective complaint. Lisa argued that the counterclaim failed to attach essential documents required by Articles 106, 107, and 109 of the Code of Civil and Commercial Procedure. The court concluded that the counterclaim met the requirements of Articles 61, 106, and 107, and that the offered documents were properly identified.

Lis pendens. Lisa alleged identity of parties and claims with a summary damages proceeding pending before the Fifth Civil Court of First Instance under Exp. 01046-2012-00201. The court found that Lisa offered no evidence to demonstrate the existence of a pending proceeding with the same parties, subject matter, and cause of action, and that the court itself had not accumulated that proceeding, a decision that is final.

Lack of standing of the defendant. Lisa challenged its own standing as a party, arguing that the damages were caused by third parties. The court determined that Lisa possessed sufficient standing to appear as a party in the proceeding and that no evidence to the contrary was offered.

Lack of standing of the plaintiff. The standing of the counterclaimant was challenged. The court found that the counterclaimant was legitimated to appear in the proceeding and that the party raising the exception failed to prove its assertions under Article 126 of the Code of Civil and Commercial Procedure.

Prescription. Lisa invoked Article 1673 of the Civil Code, arguing that the one-year limitations period for damages claims had long expired. The court determined that the party raising the exception offered no evidence to demonstrate that the prescriptive period had run.

Lack of legal representation of the counterclaimant. It was argued that, at the time the counterclaim was admitted for processing (December 18, 2015), the mandate of Licenciado Francisco José Palomo Tejeda was no longer in effect, given his assassination on June 3, 2015. The court determined that the party raising the exception failed to prove its assertions within the incident.

Ruling

• All seven preliminary exceptions were denied: incompetence, defective complaint, lis pendens, lack of standing of the defendant, lack of standing of the plaintiff, prescription, and lack of legal representation of the counterclaimant
• Compañía Importadora La Perla, S.A. was ordered to pay costs

Legal Basis

• Articles 12, 28, 203, and 204 of the Constitution of the Republic of Guatemala
• Articles 1, 14, 15, 132, 160, 226, 227, 1039 of the Commercial Code
• Article 15 of the Civil Code
• Articles 1, 6, 16, 17, 18, 19, 29, 31, 44, 45, 51, 61, 62, 71, 72, 79, 106, 107, 108, 109, 111, 112, 116, 120, 121, 128, 181, 182, 186, 194, 229, 230, 231, 232, 233, 234, 235 of the Code of Civil and Commercial Procedure
• Articles 16, 23, 34, 51, 57, 58, 59, 62, 74, 94, 95, 113, 135 through 142 bis, 143 of the Judiciary Act

Signatories

• Vivian Elizabeth Hernández Jacinto, Attesting Witness (testigo de asistencia)
• Daniel Josue Perez Cortez, Attesting Witness