FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE,
NO. 67, 189 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE.
Jacques F. Bezou, Sr. Stacy R. Palowsky Matthew L. Devereaux
Counsel for Plaintiff/Appellant: Cynthia Anne Cole
S. Rubin, Julie M. McCall, George P. Holmes, Kantrow, Spaht,
Counsel for Defendant/Appellee: Sabine Bancshares, Inc.
L. Whitehead Attorney Counsel for Defendant/Appellee: Sabine
composed of John D. Saunders, Billy Howard Ezell, and Phyllis
M. Keaty, Judges.
PHYLLIS M. KEATY, JUDGE.
Cynthia Anne Cole, appeals the trial court's judgment
granting a Peremptory Exception of No Cause of Action in
favor of Defendant/Appellee, Sabine Bancshares, Inc. (SBI).
For the following reasons, the trial court's judgment is
AND PROCEDURAL HISTORY
matter arises out of Cynthia's disagreement with her
brother, James Robert Cole, Jr. (Jim), over shares of bank
stock they inherited from their deceased father, James Robert
Cole, Sr. (James). James was the owner, CEO, and majority
stockholder of SBI. SBI is a holding company which holds 100%
of the stock of Sabine State Bank and Trust Company (SSBTC).
Prior to James's death, Cynthia owned 1, 406 shares of
SBI stock. Upon James's death, Cynthia inherited 3, 020.5
shares of his stock, making her an owner of approximately 44%
of SBI stock. Litigation subsequently ensued between Cynthia
and Jim regarding their father's succession and division
of the stock. See Succession of Cole, 12-802
(La.App. 3 Cir. 12/26/12), 108 So.3d 240, writ
denied, 13-257 (La. 3/15/13), 109 So.3d 384.
January 7, 2016, Cynthia filed a Petition for Purchase of
Shares against SBI, alleging that she was an oppressed
shareholder under La.R.S. 12:1-1435 ("oppressed
shareholder statute"). Cynthia sought to have SBI
purchase her shares of stock at fair value as defined in the
statute. On February 26, 2016, SBI filed a Peremptory
Exception of No Cause of Action, arguing that the actions
alleged in Cynthia's petition fail to constitute acts of
oppression as defined in La.R.S. 12:1-1435. SBI argued that
La.R.S. 12:1-1435 does not operate retroactively such that
any alleged acts of oppression occurring before January 1,
2015, the date the oppressed shareholder statute became
effective, cannot provide a cause of action under the
statute. Cynthia filed an opposition memorandum. A hearing on
the exception occurred on May 2, 2016, after which the trial
court allowed the parties to file post-trial memoranda. On
June 30, 2016, the trial court issued an Order with reasons
granting SBI's exception, finding that the oppressed
shareholder statute constitutes substantive law which can
only be applied prospectively. The trial court further
ordered Cynthia to file an amended petition, "alleging
only those acts of shareholder oppression that have occurred
on or after January 1, 2015[.]"
filed a Motion to Certify Judgment as Final and Memorandum in
Support, which was granted by the trial court on August 3,
2016. She, thereafter, filed a devolutive appeal, which the
trial court granted on August 17, 2016. That record was
lodged in this court under Docket Number 16-976. The trial
court, however, issued a subsequent Order on October 4, 2016,
instructing Cynthia to show cause why the appeal "should
not be dismissed as having been taken from a non-appealable,
interlocutory judgment and/or a judgment lacking proper
decretal language." In response, Cynthia filed a brief
with this court on October 18, 2016. On November 16, 2016,
this court, on its own motion, dismissed her appeal and held
that the trial court's interlocutory ruling was
"incapable of being designated as final pursuant to
La.Code Civ.P. art. 1915(B)." Cole v. Sabine
Bancshares, Inc., 16-796, p. 2 (La.App. 3 Cir.
11/16/16), 205 So.3d 995, 996.
December 14, 2016, Cynthia filed with the trial court a
Motion for Clarification of Judgment, Alternatively, Motion
to Amend Judgment with a supporting memorandum. On January
17, 2017, the trial court issued an Amended Judgment granting
the peremptory exception in part, dismissing Cynthia's
claims for actions prior to January 1, 2015, pursuant to the
oppressed shareholder statute, ordering her to amend her
petition to allege acts occurring on or after January 1,
2015, and certifying it as a final and appealable judgment.
Cynthia appeals that judgment.
appeal, Cynthia asserts the following assignments of error:
[1.] The trial court erred by finding that La.R.S. 12:1-1435,
the oppressed shareholder statute, cannot apply to pre-2015
acts, thereby sustaining SBI's exception of no cause of
action with respect to alleged acts of oppression which took
place prior to 2015 and dismissing Ms. Cole's claims
arising from same with prejudice.
[2.] The trial court erred by ordering Ms. Cole to amend her
petition to include only those alleged acts of oppression
which took place after January 1, 2015, even though said acts
should be admissible under Code of Evidence article 404(B)
even if the oppressed shareholder statute does not
specifically apply to them.
appellate court's "standard or review for sustaining
or denying a peremptory exception of no cause of action is de
novo because it raises a question of law." Hebert v.
Shelton, 08-1275, p. 3 (La.App. 3 Cir. 6/3/09), 11 So.3d
The function of the peremptory exception of no cause of
action is to question whether the law extends a remedy to
anyone under the factual allegations of the petition. The
peremptory exception of no cause of action is designed to
test the legal sufficiency of the petition by determining
whether [the] plaintiff is afforded a remedy in law based on
the facts alleged in the pleading. No evidence may be
introduced to support or controvert the objection that the
petition fails to state a cause of action. The exception is
triable on the face of the ...