Opinion
No. 2023-C-00024.
03-07-2023
Jason J. DUREL, M.D. v. ACADIAN EAR, NOSE, THROAT & FACIAL PLASTIC SURGERY, APMC.
Writ application granted. See per curiam.
PER CURIAM.
In this shareholder withdrawal action filed pursuant to La. R.S. 12-1:1435, the plaintiff, Jason Dural, M.D., gave notice to defendant, Acadian Ear, Nose, Throat & Facial Plastic Surgery, APMC ("Acadian"), of his intent to withdraw from the corporation due to oppression. When Acadian did not accept his offer, Dr. Dural filed the instant action pursuant to La. R.S. 12-1:1435 G. Acadian responded with a reconventional demand in which it sought, inter alia, a temporary restraining order ("TRO") and a preliminary injunction. Although the trial court granted a TRO, it later dissolved it and further denied Acadian's request for a preliminary injunction. Durel v. Acadian Ear, Nose, Throat & Facial Plastic Surgery, APMC, 2021-433 (La. App. 3 Cir. 5/25/22), 2022 WL 1664339, reh'g granted, 2021-00433 (La. App. 3 Cir. 8/31/22), 2022 WL 3959347, and on reh'g, 2021-433 (La. App. 3 Cir. 11/16/22), 352 So.3d 1082. While the matter was before the appellate court on Acadian's application for rehearing, Acadian filed an exception of no right of action, granted by the trial court and affirmed by the court of appeal. Durel v. Acadian Ear, Nose, Throat & Facial Plastic Surgery, APMC, 2022-146 (La. App. 3 Cir. 10/19/22), ___ So.3d ___, 2022 WL 10779721 (unpub.). The lower courts' determination that Dr. Dural had no right of action were based on findings made in connection with the hearing on the preliminary injunction.
The issue in this case is whether Dr. Dural has a right of action under La. R.S. 12-1:1435. That statute provides in pertinent part that, after a shareholder provides written notice of intent to withdraw based on oppression:
[i]f the corporation does not accept the withdrawing shareholder's offer as provided in Subsection E of this Section, the shareholder may file an ordinary proceeding against the corporation in district court to enforce the shareholder's right to withdraw.
A peremptory exception of no right of action determines whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Miller v. Thibeaux, 2014-1107, pp. 5-6 (La. 1/28/15), 159 So.3d 426, 430. Dr. Dural, as a shareholder seeking to withdraw from Acadian, clearly has a right of action under this statute. The lower courts erred in holding otherwise.
Our jurisprudence reflects that a determination made in connection with preliminary injunction is not "law of the case" as that doctrine does not apply to interlocutory rulings. See, e.g., Starkey v. Starkey, 2013-0166 (La. App. 1 Cir. 8/6/13), 122 So.3d 579, 583 ("[t]he doctrine does not apply in the context of a trial court ruling on interlocutory issues."); Bank One, Nat.Ass'n v. Velten, 2004-2001 (La. App. 4 Cir. 8/17/05), 917 So.2d 454, 458 ("the law of the case doctrine argument cannot hold, as a preliminary injunction is not a final judgment, but merely an interlocutory order."); Zanella's Wax Bar, LLC v. Trudy's Wax Bar, LLC, 2019-0043 (La. App. 1 Cir. 11/7/19), 291 So.3d 693, 697, writ denied, 2019-01931 (La. 1/28/20), 291 So.3d 1052 ("a trial court's judgment on a preliminary injunction constitutes an interlocutory ruling ... The law of the case doctrine does not apply to a trial court's rulings on interlocutory issues."). The lower courts, thus, erred in applying the law of the case doctrine to find that Dr. Dural has no right of action in this matter.
For the foregoing reasons, we find that Dr. Durel has a right of action in this matter. The judgments of the lower courts, granting Acadian's exception of no right of action, are therefore reversed. This matter is remanded for further proceedings.