KAREN MOULTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
STEWART ENTERPRISES, INC., JOHN B. ELSTROTT, JR., THOMAS M. KITCHEN, ALDEN J. MCDONALD, JR., RONALD H. PATRON, ASHTON J. RYAN, JR., JOHN K. SAER, JR., FRANK B. STEWART, JR., AND SERVICE CORP. INTERNATIONAL, RIO ACQUISITION CORP. PHILIP JOSEPH ROSEN, INDIVIDUALLY AND ON BEHALF OF OF ALL OTHERS SIMILARLY SITUATED
STEWART ENTERPRISES, INC., FRANK B. STEWART, JR., JOHN B. ELSTROTT, ALDEN J. MCDONALD, JR., THOMAS M. KITCHEN, ASHTON J. RYAN, JR., RONALD H. PATRON, JOHN K. SAER, JR., SERVICE CORPORATION INTERNATIONAL, AND RIO ACQUISITION CORP.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-05636 C\W
2013-05887, DIVISION "A" Honorable Tiffany G.
A. Lemmon LEMMON LAW FIRM, LLC, David T. Wissbroecker
ROBBINS, GELLER RUDMAN & DOWD LLP COUNSEL FOR
B. Bieck, Jr. Mark A. Cunningham Alexander N. Breckinridge, V
JONES WALKER LLP, Steven W. Usdin Joshua O. Cox BARRASSO
USDIN KUPPERMAN FREEMAN & SARVER, LLC
S. Palmer, Pro Hac Vice PEPPER HAMILTON LLP COUNSEL FOR
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew Woods
Rosemary Ledet, Judge
a direct stockholder class action. From the trial court's
October 31, 2016 judgment granting certain defendants'
motions for summary judgment, the plaintiffs appeal. Because
the trial court's judgment lacks the required decretal
language for a final judgment, we dismiss the plaintiffs'
appeal without prejudice and remand.
AND PROCEDURAL BACKGROUND
suit arises out of a $1.4 billion merger transaction
involving two of the country's largest publicly traded
death care companies-Service Corporation International
("SCI") and Stewart Enterprises, Inc.
("STEI"). Simply stated, the merger transaction
involves SCI and its wholly owned subsidiary, Rio Acquisition
Corp. ("Rio"), acquiring all STEI's outstanding
shares at a price of $13.25 per share. (Rio was formed for
the merger transaction.) The merger transaction spurred
several suits by STEI's stockholders.
13, 2013, Karen Moulton filed a class action suit on behalf
of herself and the public stockholders of STEI (the
"Moulton Suit"). Named as defendants in the Moulton
Suit were STEI; the seven members of STEI's board of
directors [(i) Frank Stewart, Jr.; (ii) John Elstrott, Jr.;
(iii) Alden McDonald, Jr.; (iv) Thomas Kitchen; (v) Ashton
Ryan, Jr.; (vi) Ronald Patron; and (vii) John Saer, Jr.];
SCI; and Rio. Ms. Moulton alleged that the sale price was
inadequate and that the sale process was unfair. She further
alleged that STEI and its board of directors breached their
fiduciary duty in handling the sale process, that STEI should
have obtained a higher stock purchase price, and that all the
defendants conspired to breach those fiduciary duties to
obtain personal benefits. She still further alleged that Mr.
Stewart pushed for the merger in order to secure a side deal
for himself. She sought both injunctive relief and monetary
damages for the alleged breach of fiduciary duties.
20, 2013, Philip Joseph Rosen filed a similar class action
suit on behalf of himself and the public stockholders of STEI
against the same defendants making similar allegations as in
the Moulton Suit (the "Rosen Suit"). Also in June
2013, three alleged STEI stockholders-Alex Rodgers, Gairi
Williamson, and Debbie Williamson-filed a petition for
intervention in both the Moulton Suit and the Rosen Suit (the
"Interventions"). On July 30, 2013, an Order of
Consolidation was entered, by stipulation of the parties,
consolidating the Moulton Suit, the Rosen Suit, and the
August 2013, the trial court denied the plaintiffs'
motions for a temporary restraining order and preliminary
injunction. In October 2013, the trial court granted
SCI's and Rio's exception of no cause of action as to
the aiding and abetting allegation, but allowed the
plaintiffs to amend their petition to include a civil
conspiracy claim. After the plaintiffs amended their
petition, all of the defendants filed exceptions of no cause
of action. In June 2014, the trial court granted the
exceptions of SCI and Rio, but denied the exceptions of STEI,
Mr. Stewart, and the other defendant-directors. Thereafter,
the remaining defendants filed two motions for summary
judgment. One motion was filed by Mr. Stewart; the other
motion was filed by the remaining six director-defendants and
STEI. As noted at the outset, on October 31, 2016, the trial
court granted certain defendants' motions for summary
judgment. This appeal followed.
threshold requirement in any appeal is subject matter
jurisdiction. An appellate court cannot determine the merits
of an appeal unless its subject matter jurisdiction is
properly invoked by a valid final judgment. Freeman v.
Phillips 66 Co., 16-0247, p. 2 (La.App. 4 Cir.
12/21/16), 208 So.3d 437, 440 (citing Tsegaye v. City of
New Orleans, 15-0676, p. 3 (La.App. 4 Cir. 12/18/15),
183 So.3d 705, 710, writ denied, 16-0119 (La.
3/4/16), 188 So.3d 1064); see La. C.C.P. art.
2083(A). Before reaching the merits of an appeal, an
appellate court has a duty to determine, on its ...