Jason J. Durel, M.D. v. Acadian Ear, Nose, Throat & Facial Plastic Surgery, Apmc

Supreme Court of Louisiana
March 07, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
JASON J. DUREL, M.D.
VS.
ACADIAN EAR, NOSE, THROAT & FACIAL
PLASTIC SURGERY, APMC
No. 2023-C-00024
_ _
_ _ _ _
I
N RE: Jason J. Durel, M.D. - Applicant Plaintiff; Applying For Writ Of Certiorari,
Parish of Lafayette, 15th Judicial District Court Number(s) C -2021-1521, Court of
Appeal, Third Circuit, Number(s) 22-146;
_ _ _ _ _ _
March 07, 2023
Writ application granted. See per curiam.
JBM
JLW
JDH
SJC
JTG
WJC
PDG
03/07/2023 "See News Release 012 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2023-C-00024
JASON J. DUREL, M.D.
VS.
ACADIAN EAR, NOSE, THROAT & FACIAL PLASTIC SURGERY,
APMC
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Lafayette
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), reh’g granted, 2021-00433 (La. App. 3 Cir. 8/31/22), 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.
03/07/2023

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 o ffer 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.

La. R.S. 12:1-1435 G.
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 n ot 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. 1Cir. 11/7/19), 291 So. 3d 693, 697, writ denied, 2019-01931
(La. 1/28/20), 291 So. 3 d 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.