The First Superior Tribunal reverses the Sixteenth Court's refusal to admit Lisa, S.A.'s accounting demand against Juan Luis Bosch Gutiérrez for over $44.9 million in retained dividends.

Procedural Background

Lisa, S.A. filed a summary accounting demand against Juan Luis Bosch Gutiérrez, who had been appointed judicial depositary of funds belonging to Lisa within the ordinary proceeding, Exp. 556-99, before the Eleventh Civil Circuit Court of the First Judicial Circuit of Panama. Through Order 2277-2018, dated December 5, 2018, that court recognized that Villamorey, S.A. was obligated to pay dividends on shares belonging to Lisa, and designated Bosch as judicial depositary of those funds.

The Sixteenth Civil Circuit Court refused to admit the demand through Order No. 1623 of September 27, 2021, reasoning that the acts by which Bosch was constituted as depositary occurred in a separate proceeding outside its jurisdiction, and that corresponding incidents should be raised before the court that handled the original case.

Arguments on Appeal

Lisa argued that the trial court misapprehended the facts pleaded in the demand. The action did not seek damages against the opposing party in the ordinary proceeding, but rather demanded a personal accounting from the judicial depositary for sums that, according to independent accounting audits, exceeded $44,910,912.00 in retained dividends.

Lisa contended that the ordinary proceeding before the Eleventh Civil Circuit Court had concluded by final judgment, making it impossible to raise incidental claims in that proceeding. She invoked Article 1379 of the Judicial Code, which provides for accounting proceedings when the obligor has held a position that the law imposes as a necessary consequence the duty to render accounts. Lisa warned that the refusal to admit the demand could violate Article 32 of the Constitution and amount to a denial of justice.

Tribunal's Analysis

The Tribunal cited its own precedent of February 22, 2002, on the nature of accounting proceedings, confirming that such proceedings arise from a document carrying executory force that evidences an express obligation to render accounts, or from having held a position to which the law attaches that obligation.

"El proceso especial de rendición de cuentas, surge de un documento que presta mérito ejecutivo señalado expresamente por la ley y de la cual aparece la obligación de rendir cuentas o cuando el obligado al rendimiento de cuentas lo es por haber desempeñado un cargo o ejecutado un hecho al que la ley le impone esa obligación." (Page 4)

The Tribunal disagreed with the trial court's reasoning, holding that the accounting proceeding is "entirely independent and special" and is not subject to the linkage or subordination of another existing proceeding. The fact that the ordinary proceeding, Exp. 556-99, in which the judicial depositary was constituted had been handled by a different court did not prevent the Sixteenth Court from hearing the case, precisely because of the autonomous character of the summary accounting proceeding.

The Tribunal concluded that the record contained sufficient evidence to determine that Lisa had standing to demand an accounting from the judicial depositary, pursuant to Article 536(4) of the Judicial Code, which establishes the legal responsibilities of a depositary.

Ruling

• Reversed Order No. 1623 of September 27, 2021, issued by the Sixteenth Civil Circuit Court of the First Judicial Circuit of Panama
• Ordered admission of the accounting demand filed by Lisa, S.A. against Juan Luis Bosch Gutiérrez
• Ordered the case returned to the trial court upon the ruling becoming final

Legal Basis

• Article 1379 of the Judicial Code — establishes the procedural basis for accounting proceedings when the obligor held a position to which the law attaches a necessary duty to render accounts
• Article 536(4) of the Judicial Code — defines the legal responsibilities of a judicial depositary
• Article 1151 of the Judicial Code — governs formalities for resolving appeals
• Article 132 of the Judicial Code — governs distribution of cases among courts

Signatories

• Miguel A. Espino G., Magistrate
• Ariadne M. García A., Magistrate