The Civil Chamber of the Supreme Court of Justice dismisses Avícola Villalobos, S.A.'s cassation appeal against Lisa, S.A. and orders costs and a fine, confirming that a shareholder's final exclusion does not by itself prove the damages claimed.

Case Background

Avícola Villalobos, S.A. brought a commercial summary damages proceeding against Lisa, S.A., attributing to it fraudulent acts of commercial disparagement and immoral conduct that, according to the complaint, led its ordinary general shareholders' assembly to resolve Lisa's exclusion as a shareholder. In Order of July 4, 2023, the Thirteenth Pluripersonal Civil Trial Court of the Department of Guatemala granted three peremptory exceptions raised by Lisa, S.A.: lack of veracity in the facts alleged, non-existence of the damages claimed, and improcedence of a damages claim against Lisa for acts performed by third parties. It denied four further peremptory exceptions raised by the same party: extinction of the plaintiff's right to claim damages, lack of standing of the plaintiff, lack of standing of the defendant to pay damages, and defective representation on the plaintiff's side. It accordingly upheld the answer in the negative and dismissed the lawsuit.

The First Civil and Commercial Court of Appeals, in Appeal Ruling of May 7, 2024, denied the appeal and affirmed the judgment. The appellate court found both the finality of Lisa's exclusion and the existence of the publications offered by the plaintiff to be proven, but concluded that those publications were promoted, financed, and executed by persons who were not shown to hold representative capacity for Lisa, S.A. or to have acted on its behalf. The documentary evidence on the foreign judicial actions included the September 5, 2008 judgment of the Supreme Court of Bermuda, Commercial Division, issued in Ruling No. 1999-108-2001-79, a proceeding brought by Lisa, S.A. against Leamington Reinsurance Company, Ltd. and Avícola Villalobos, S.A.; Panamanian filings and rulings, among them the complaint of January 17, 2001 before the Twelfth Circuit Court of the First Judicial Circuit of Panama and the July 11, 2008 judgment of the Eleventh Civil Circuit Court in file 42-08; and a June 11, 2007 resolution of the United States Court of Appeals for the Eleventh Circuit. One of the paid advertisements the plaintiff offered as evidence of the disparagement campaign concerned the attachment of shares in the entities forming part of the Avícola Villalobos Group, published on December 13, 2000.

Grounds Invoked

The appellant raised one substantive ground with two sub-grounds. The first, error of fact in the assessment of evidence through distortion, was developed in two parts. In the first, it argued that the notarial act authorized by notary Juan Luis Aguilar Salguero on April 26, 2011, transcribing point ten of act number twelve of the ordinary general shareholders' assembly held on April 4, 2011, and the notarial act authorized by notary Alberto Antonio Morales Velasco on May 3, 2011, recording notice of the exclusion to Lisa, S.A. through Tito Enoc Marroquín Cabrera, prove not only the finality of the exclusion but also Lisa's authorship of and liability for the acts that motivated it. In the second part, it argued that the appellate court distorted ten mass-media publications by concluding that they "could" affect the plaintiff's reputation, when in its view they showed that they actually did. The second sub-ground, erroneous interpretation of Article 228 of the Commercial Code, posits that damages are already constituted by the fraudulent acts that motivated the exclusion, so that the proceeding would serve only to quantify them through experts, and that the appellate court erred in recharacterizing the fees and advisory expenses claimed as judicial costs.

In its own brief, the appellant recorded that Lisa, S.A. stated in its answer to the complaint that it carried out the challenged acts because of the non-payment of dividends, and characterized that conduct as unlawful on the ground that publications are not a legal means of claiming payment. The plaintiff's case regarding Lisa's conduct rests, in its entirety, on acts carried out by third parties.

Defense of Lisa, S.A.

Lisa, S.A. opposed the appeal on August 11, 2025 (Cassation Appeal) on the following grounds:

• The notarial acts do no more than record the corporate decision to exclude, its finality, and the reasons supporting it, without containing any judicial declaration or equivalent act imposing an obligation to indemnify.
• The presumption in Article 228 of the Commercial Code is iuris tantum and must be applied consistently with Articles 1645 and 1648 of the Civil Code, under which fault is presumed but the injured party must prove the damage suffered, and with Article 1434 of the same code, which requires damages to be the immediate and direct consequence of the act giving rise to liability.
• The second part of the distortion sub-ground fails to meet Article 619(6) of the Civil and Commercial Procedural Code, because the ten publications were not precisely identified as authentic documents and no point-by-point comparison was made.
• What the appellant raises is not a technical error but disagreement with the probative weight assigned by the appellate court, a matter not reviewable through the restrictive channel of cassation.
• Under Article 126 of the Civil and Commercial Procedural Code, a party asserting a claim must prove the facts constituting it, and the appellant offered in the underlying proceeding a single item of evidence, a plain copy of protocolization act number thirteen authorized on June 6, 2011 by notary Ana Lucrecia Palomo Marroquín de Ortiz, containing the complaint filed by Margarita Castillo before the Superior Court of Justice of Ontario, Canada, an item unsuited to proving the damages alleged.
• Article 150 of the Judicial Branch Act permits a generic award only for the quantification of damages already established, and never substitutes for missing proof of their existence.

Chamber's Analysis

On the first part of the distortion sub-ground, the Chamber examined both notarial acts directly and confirmed that the appellate court did assess them and drew from them factual findings faithful to their content: Lisa's exclusion as a shareholder, the reasons and evidentiary bases the assembly took into account, and the act giving notice of that decision. It determined that the conclusion about who financed and executed the publications did not derive from the notarial acts but from the direct assessment of the publications themselves, so there was no disfigurement or truncation of the information emanating from the documents identified. What the appellant's thesis actually reveals is its disagreement with the probative weight assigned to those documents, a matter that cannot be settled through this sub-ground.

The second part was rejected for defects in its formulation. The Chamber recalled that the sub-ground requires the appellant to identify beyond doubt the document or authentic act affected by the error, to state the erroneous conclusions drawn from each item of evidence, and to show the bearing of the error on the outcome of the judgment. The appellant confined itself to a generic reference to "ten publications" without specifying which, and directed its argument to the probative scope it believed should have been given to them, deficiencies the Court cannot cure on its own motion.

On the erroneous interpretation ground, the Chamber transcribed Article 228 of the Commercial Code, which provides that an excluded shareholder shall be liable to the company for the damages caused by the acts that motivated the exclusion, and concluded that the appellate court gave the provision its correct meaning and scope. The finality of the exclusion exhausts its effects in the definitive character of the corporate decision and does not carry the existence of damages with it:

"...el hecho de haber quedado firme la exclusión, no implica que también quedaran probados los daños, pues el efecto de firmeza es en cuanto a la decisión societaria de exclusión (...) pero tal circunstancia no libera a la parte reclamante de su carga probatoria en sede judicial, pues no tiene un efecto automático" (Page 39)

The Chamber specified that the exclusion merely enables the right to claim in court, leaving the plaintiff to prove a direct causal nexus and the economic magnitude of the loss, whether consequential damage or lost profit. Here no direct nexus was established between the publications and the excluded shareholder, and the damages sought were neither established nor proven. The claim for fees and advisory expenses likewise did not fit the defect alleged, since the concept of judicial costs is distinct from the damages claim in dispute. Under Article 633 of the Civil and Commercial Procedural Code, dismissal of the appeal requires an award of costs against the appellant and the imposition of a fine.

Ruling

• The cassation appeal filed by Avícola Villalobos, S.A. is dismissed.
• The appellant is ordered to pay the costs of the appeal.
• A fine of Q100.00 is imposed on the appellant, payable to the Treasury of the Judicial Branch within three days of the ruling becoming final.
• Notice is ordered, and the record is to be returned, with certification of the decision, to the corresponding court.

Legal Basis

• Article 228 of the Commercial Code — liability of the excluded shareholder to the company for damages caused by the acts that motivated the exclusion; the provision whose interpretation by the appellate court was upheld.
• Article 621 of the Civil and Commercial Procedural Code — availability of cassation on substantive grounds, including error of fact in the assessment of evidence and erroneous interpretation of the law.
• Article 619(6) of the Civil and Commercial Procedural Code — requirement of precise identification of the document or authentic act underlying an error of fact, invoked by Lisa, S.A.
• Article 633 of the Civil and Commercial Procedural Code — award of costs and imposition of a fine upon dismissal of the appeal.
• Articles 12, 203, and 221 of the Constitution of the Republic of Guatemala, 1039 of the Commercial Code, 66, 67, 70, 71, 72, 629, and 634 of the Civil and Commercial Procedural Code, and 16, 57, 74, 76, 141, 143, 149, and 172 of the Judicial Branch Act — provisions cited as the applicable law for the ruling.