Debbie Cade Vienne, Cade's Pharmacy, LLC, Kyle Stevens, Pharmacy Central, LLC, David Osborn, Osborn Enterprises, LLC, Orlando Palmer, and Parker's Pharmacy and Pharmplus CBD, LLC v. The State of Louisiana through the Office of the Governor, Division of Administration, Office of Group Benefits, and Jay Dardenne, in his official capacity as Louisiana Commissioner of Administration ( 2024 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
/ COURT OF APPEAL
“
4 AW FIRST CIRCUIT
AYN ne
DEBBIE CADE VIENNE, CADE’S PHARMACY, LLC, KYLE STEVENS, PHARMACY
CENTRAL, LLC, DAVID OSBORN, OSBORN ENTERPRISES, LLC, ORLANDO PALMER,
AND PARKER’S PHARMACY AND PHARMPLUS CBD, LLC
2023 CA 0983
VERSUS
THE STATE OF LOUISIANA THROUGH THE OFFICE OF THE GOVERNOR, DIVISION
OF ADMINISTRATION, OFFICE OF GROUP BENEFITS, AND JAY DARDENNE, IN HIS
OFFICIAL CAPACITY AS LOUISIANA COMMISSIONER OF ADMINISTRATION
Judgment Rendered: MAY 3 1 2024
eR KE *
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C726989, Sec. 23
The Honorable Kelly E. Balfour, Judge Presiding
* * ke *
Catherine M. Maraist Attorneys for Plaintiffs/Defendants-in
Danielle L. Borel Reconvention/A ppellants
Karl Koch Debbie Cade Vienne, ef al.
Baton Rouge, Louisiana
Larry E. Demmons Attormeys for Intervenor/Appellee
Metairie, Louisiana CaremarkPCS Health, LLC
A.J. Herbert, II]
Jennifer Herbert
New Orleans, Louisiana
J. Wendell Clark Attorneys for Defendants/Plaintiffs-in
Mark L. Barbre Reconvention/Appellees
J. Weston Clark State of Louisiana, through the Office of the
Mary Eliza Baker Governor, Division of Administration,
Baton Rouge, Louisiana Office of Group Benefits, and Jay Dardenne,
in his Official Capacity as the Louisiana
Commissioner of Administration
eRe *
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.
7 ath 4. Carnaund wrthet basen
STROMBERG, J.
The plaintiffs appeal from a judgment denying their motion for a preliminary
injunction. The defendants and intervenor answered the appeal and seek a
modification of another interlocutory judgment, alleging that the trial court erred in
overruling their respective peremptory exceptions raising the objections of res
judicata, no right of action, and no cause of action, and declinatory exceptions
raising the objections of /is pendens and lack of subject matter jurisdiction.
Additionally, the defendants filed a peremptory exception raising the objection of
res judicata with this court. For the reasons that follow, we affirm, deny the answers
to the appeal, and overrule the exception of res judicata.
FACTS AND PROCEDURAL HISTORY
A contract between the Louisiana Office of Group Benefits (OGB) and
CaremarkPCS Health, LLC (Caremark) is the basis of this litigation. The plaintiffs,
Debbie Cade Vienne, Cade’s Pharmacy, LLC, Kyle Stevens, Pharmacy Central,
LLC, David Osborn, Osborn Enterprises, LLC, Orlando Palmer, and Parker’s
Pharmacy and PharmplusCBD, LLC, are independent pharmacists and independent
community retail pharmacies operating in the State of Louisiana.
On December 21, 2022, the plaintiffs filed a petition for injunctive relief and
request for a temporary restraining order, naming as defendants the State of
Louisiana through the Office of the Governor, Division of Administration, OGB,
and Jay Dardenne, in his official capacity as the Commissioner of Administration
for the State of Louisiana. In their petition, the plaintiffs sought injunctive relief to
prevent the defendants from proceeding with the proposed Caremark contract
between OGB and Caremark related to the operation of OGB’s pharmacy benefits
program. The plaintiffs alleged that the defendants were proceeding with the
contract without the final approval of the Joint Legislative Committee on the Budget
as mandated by La. R.S. 42:802(D)(1).' The plaintiffs further alleged that although
they were not required to prove that they would suffer irreparable harm without
obtaining injunctive relief, each of the plaintiffs would suffer irreparable harm. The
trial court signed an order granting the plaintiffs a temporary restraining order, which
blocked implementation of the Caremark contract while the temporary restraining
order was pending.
On December 27, 2022, Caremark filed a petition to intervene in the matter,
and the plaintiffs filed an amended and supplemental petition for injunctive relief,
adding as plaintiffs Dr. Eric Peters and P&C Healthcare, LLC d/b/a Lagniappe
Pharmacy 3. That same day, OGB and Jay Dardenne filed a peremptory exception
raising the objections of no cause of action and no right of action. OGB and Jay
Dardenne argued that the plaintiffs failed to state a cause of action because La. R.S.
42:802(D)(1) did not apply to the Caremark contract. Specifically, they argued that
the Caremark contract was a consulting service contract that was not governed by
La. R.S. 42:802(D)(1). After numerous exceptions’ were filed in this matter, a
hearing was held on December 28, 2022, wherein the trial court granted the
peremptory exception raising the objection of no cause of action and dismissed the
' Louisiana Revised Statutes 42:802(D)(1) provides, in pertinent part:
{A]lny new plan of benefits or the annual plan of benefits submitted under the
direction of the commissioner of administration for the life, health, or other benefit
programs offered through the [OGB] or any professional, personal, and social
services contracts other than contracts for legal services or actuarial services
negotiated through the [OGB] under the provisions of Chapter 17 of Subtitle III of
Title 39 of the Louisiana Revised Statutes of 1950 as provided in Subsection A and
Paragraph (B)(8) of this Section or any contracts in connection therewith shall be
subject to review and final approval by the Joint Legislative Committee on the
Budget.
2 On December 28, 2022, Caremark filed a peremptory exception raising the objections of no cause
of action and res judicata, a declinatory exception raising the objection of /is pendens, and a
dilatory exception raising the objection of improper joinder of parties. On December 28, 2022,
OGB and Jay Dardenne also filed a declinatory exception raising the objection of /is pendens and
a peremptory exception raising the objection of res judicata.
3
plaintiffs’ case. On January 19, 2023, the trial court signed a judgment in
accordance with its oral ruling, granting OGB, Jay Dardenne, and Caremark’s
peremptory exceptions raising the objection no cause of action, and dismissing all
of the claims asserted by the plaintiffs against them. The trial court’s January 19,
2023 judgment further granted Caremark’s petition for intervention, permitted the
plaintiffs to amend their petition within seven days of the judgment, and dissolved
the temporary restraining order it issued on December 21, 2022.
On January 27, 2023, the plaintiffs filed a second supplemental petition for
injunctive relief. In their petition, the plaintiffs alleged all of the same claims, facts,
and prayers for relief set forth in their original petition, except for the request for a
temporary restraining order.’ The plaintiffs alleged that the Caremark contract was
for a health care plan or system, health care service, benefits program, or other plan
or program authorized by law. The plaintiffs argued that the contract was within the
scope of authority granted to OGB by La. R.S. 42:802(B)(8)(d), which requires
approval from certain legislative committees before OGB could lawfully enter into
the Caremark contract.> Because legislative approval was not acquired before the
parties entered into the Caremark contract, the plaintiffs requested a judgment
granting a preliminary injunction in their favor prohibiting the defendants from
taking any action to proceed with the contract.
3 The record does not contain a transcript of the December 28, 2022 hearing.
4 The plaintiffs requested that after further proceedings, there be a judgment granting a permanent
injunction in their favor.
> Louisiana Revised Statutes 42:802(B)(8)(d) provides:
Any such contract shall be subject to review and final approval by the appropriate
standing committees of the legislature having jurisdiction over review of agency
rules by [OGB] as designated by [La.] R.S. 49:966(B)(21)(c), or the subcommittees
on oversight of such standing committees, and the office of state procurement of
the division of administration.
4
On February 13, 2023, Caremark filed a peremptory exception raising the
objections of no cause of action and nonjoinder of a party, and a declinatory
exception raising the objection of lis pendens. In support of its objection of lis
pendens, Caremark argued that the instant matter arose out of the same transaction
or occurrence involved in Wixson v. State Through Office of Governor, 2023-0054
(La. App. 1 Cir. 10/20/23), 377 So.3d 701. Caremark argued that both this case and
Wixson addressed the validity of the Caremark contract and sought to stop Jay
Dardenne from executing and implementing the contract. In support of its objection
of no cause of action, Caremark argued that “much like [the plaintiffs] previously
rejected argument related to La. R.S. 42:802(D)(1), [the p]laintiffs now contend that
OGB and [Jay] Dardenne [were] in violation of La. R.S. 42:802(B)(8)(d), which
purportedly require{d] OGB contracts to obtain approval from ... standing
committees of the legislature[.]” Caremark argued that La. R.S. 42:802(B)(8)(d) did
not provide the plaintiffs relief; therefore their cause of action must be dismissed. In
support of its objection of nonjoinder of a party, Caremark argued that it should have
been joined as a party to this proceeding pursuant to La. C.C.P. art. 641° because it
was a necessary party. Caremark asserted that “because [the] [p]laintiffs’ prior and
current requests for injunctive relief [sought] to block implementation and
performance of Caremark’s ... contract with OGB, Caremark was unquestionably
required to be named as a defendant in this case pursuant to [La. C.C.P. art.] 641.”
® Louisiana Code of Civil Procedure article 641 provides:
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already
parties.
(2) He claims an interest relating to the subject matter of the action and is
so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of
incurring multiple or inconsistent obligations.
5
On March 7, 2023, OGB and Jay Dardenne filed a declinatory exception
raising the objections of lis pendens and lack of subject matter jurisdiction,’ and a
peremptory exception raising the objections of res judicata, no right of action, and
no cause of action. In support of their exceptions of lis pendens and res judicata,
OGB and Jay Dardenne argued that this matter and Wixson arose out of the same
transaction and occurrence and involved “virtually the same demands for relief by
parties related to and asserting identical interests[.]” For this reason, OGB and Jay
Dardenne argued that this case should be dismissed. OGB and Jay Dardenne further
argued that the plaintiffs had no right of action under the Caremark contract because
the plaintiffs were not parties to the contract and had no cause of action for the relief
claimed because La. R.S. 42:802(B)(8)(d) did not apply to the contract at issue.
On March 7, 2023, OGB and Jay Dardenne filed an answer to the plaintiffs
original, first amended and supplemental, and second supplemental petition for
injunctive relief, which generally denied the majority of the plaintiffs’ allegations,
asserted several affirmative defenses, and raised a reconventional and third party
demands for declaratory judgment, preliminary injunction, and permanent
injunction.
On March 20, 2023 the trial court held a hearing on the various exceptions®
filed by the parties. After hearing arguments from the parties, the trial court denied
7 We note that 2023 La. Acts, No. 5, § 1 (eff. Aug. 1, 2023) deleted the objection of lack of subject
matter jurisdiction from the objections raised through a declinatory exception and added it to the
list of peremptory exceptions found in La. C.C.P. art. 927. See La. C.C.P. art. 925, Official
Revision Comments - 2023; see_also VCS, LLC v. Louisiana Department_of Economic
Development, 2023-0548 (La. App. 1 Cir. 11/9/23), 379 So.3d 54, 58 n.3.
8 On March 20, 2023, defendants-in-reconvention, the State of Louisiana, Louisiana Legislature,
Senate and House of Representatives, Joint Legislative Committee, Senate Finance Committee,
and House Appropriations Committee, through Jeff Landry in his official capacity as the Attorney
General of the State of Louisiana, filed exceptions to the reconventional and third-party demands
filed by OGB and Jay Dardenne. These exceptions included a declinatory exception raising the
objections of lack of subject matter jurisdiction, insufficiency of citation, insufficiency of service
of process, and /is pendens, as well as a dilatory exception raising the objection of unauthorized
use of summary proceeding, and a peremptory exception raising the objection of no cause of
action.
all of the exceptions.’ On March 21, 2023, the trial court held a hearing on the
plaintiffs’ second supplemental petition for injunctive relief. The parties stipulated
the following at the hearing: “THE CAREMARK CONTRACT, WHICH IS
EXHIBIT-2 IN THIS CASE, WAS NEVER SUBMITTED TO THE HOUSE
APPROPRIATIONS COMMITTEE OR THE SENATE FINANCE COMMITTEE,
WAS NEVER REQUESTED TO BE SUBMITTED TO EITHER OF THOSE
COMMITTEES[,] AND WAS NEVER APPROVED BY EITHER OF THOSE
COMMITTEES.” After testimony was heard and evidence was submitted, the trial
court denied the plaintiffs’ request for injunctive relief.
On June 12, 2023, the trial court signed a judgment denying Caremark’s
peremptory exception raising the objections of no cause of action and non-joinder
of a party, and denying its declinatory exception raising the objection of lis pendens.
The June 12, 2023 judgment also denied OGB and Jay Dardenne’s peremptory
exception raising the objections of no cause of action, no right of action, res judicata,
and declinatory exception raising the objections of lis pendens and lack of subject
matter jurisdiction. On June 12, 2023, the trial court also signed a judgment denying
the plaintiffs’ request for a preliminary injunction. Subsequently, the plaintiffs
appealed the trial court’s judgment denying their request for a preliminary
injunction.
After the appeal was lodged with this court, on October 24, 2023, OGB and
Jay Dardenne filed an answer to the appeal, requesting that this court review the trial
court’s denial of its declinatory exception raising the objections of lis pendens and
lack of subject matter jurisdiction, and peremptory exception raising the objections
of res judicata, no right of action, and no cause of action. On October 24, 2023,
Caremark also filed an answer to the appeal, requesting that this court grant its
° The record does not contain a transcript of the March 20, 2023 hearing.
7
peremptory exception raising the objection of no cause of action and declinatory
exception raising the objection of lis pendens.
On January 18, 2024, OGB and Jay Dardenne filed a peremptory exception
raising the objection of res judicata with this court. OGB and Jay Dardenne argued
that this court’s decision in Wixson affirmed the dismissal of the similarly-situated
plaintiffs’ claims as in this case. OGB and Jay Dardenne asserted that because
Wixson was final, the plaintiffs’ claims in this case were barred by res judicata and
must be dismissed. The plaintiffs opposed OGB and Jay Dardenne’s peremptory
exception raising the objection of res judicata, arguing that their claims were not
barred by Wixson because the parties were not the same. The plaintiffs argued that
all the elements of res judicata, including identity of parties, must be satisfied for
their suit to be precluded. See Carollo v. Department of Transportation _and
Development, 2021-01670 (La. 9/1/22), 346 So.3d 751, 753-54. Therefore, the
plaintiffs argued that the peremptory exception raising the objection of res judicata
should be denied.
APPLICABLE LAW
An injunction shall be issued in cases where irreparable injury, loss, or
damage may otherwise result to the applicant, or in other cases specifically provided
by law. See La. C.C.P. art. 3601(A). The writ of injunction, a harsh, drastic, and
extraordinary remedy, should only issue in those instances where the moving party
is threatened with irreparable loss or injury and is without an adequate remedy at
law. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-
0270 (La. App. 1 Cir. 3/24/05), 906 So.2d 660, 664. Generally, irreparable injury
means a loss that cannot be adequately compensated in money damages or measured
by a pecuniary standard. Louisiana Vaping Association v. Department of Revenue,
2020-0816 (La. App. 1 Cir. 2/19/21), 318 So.3d 221, 225, writ denied, 2021-00415
(La. 5/11/21), 315 So.3d 869; Concerned Citizens, 906 So.2d at 664.
A preliminary injunction is an interlocutory judgment designed to preserve
the status quo between the parties pending a trial on the merits. Stevens Construction
& Design, L.L.C. v. St. Tammany Fire Protection District No. 1, 2018-1759 (La.
App. | Cir. 1/16/20), 295 So.3d 954, 957-58 (en banc), writ denied, 2020-00977 (La.
11/4/20), 303 So.3d 650. A preliminary injunction is issued in summary proceedings
incidental to the main demand for permanent injunctive relief. Concerned Citizens,
906 So.2d at 664. Generally, a party seeking the issuance of a preliminary injunction
must show that it will suffer irreparable injury if the injunction does not issue and
must show entitlement to the relief sought; this must be done by a prima facie
showing that the party will prevail on the merits of the case. Id. However, a
petitioner is entitled to injunctive relief without the requisite showing of irreparable
injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e.,
when the conduct sought to be enjoined constitutes a direct violation of a prohibitory
law and/or a violation of a constitutional right. Davenport v. Chew, 2023-0036 (La.
App. | Cir. 9/15/23), 375 So.3d 973, 976.
Although the judgment on the preliminary injunction is interlocutory, a party
aggrieved by a judgment either granting or denying a preliminary injunction is
entitled to an appeal. La. C.C.P. art. 3612(B); Hill v. Jindal, 2014-1757 (La. App. 1
Cir. 6/17/15), 175 So.3d 988, 1002, writ denied, 2015-1394 (La. 10/23/15), 179
So.3d 600. Appellate review of a trial court’s issuance of a preliminary injunction
is limited. The issuance of a preliminary injunction addresses itself to the sound
discretion of the trial court and will not be disturbed on review unless a clear abuse
of discretion has been shown. Neill Corp. v. Shutt, 2020-0269 (La. App. 1 Cir.
1/25/21), 319 So.3d 872, 878.
DISCUSSION
The only issue before this court is whether the trial court erred in denying the
plaintiffs’ request for a preliminary injunction. The plaintiffs claim that they are
entitled to a preliminary injunction prohibiting OGB from contracting with
Caremark to provide healthcare services to OGB’s plan beneficiaries. The plaintiffs
argue that the trial court’s denial of their preliminary injunction was in error because
La. R.S. 42:802(B)(8)(d) requires healthcare services contracts to obtain final
approval from certain standing legislative committees before those contracts can be
implemented. Specifically, the plaintiffs argue that La. R.S. 42:802 sets forth the
powers and duties of OGB. According to the plaintiffs, La. R.S. 42:802(B)(8) is the
statutory section that authorizes OGB to enter into contracts for health care services.
In support of their argument, the plaintiffs rely on La. R.S. 42:802(B)(8)(d), which
provides “[a]ny such contract shall be subject to review and final approval by the
appropriate standing committees of the legislature having jurisdiction over review
of agency rules by [OGB] as designated by [La.] R.S. 49:966(B)(21)(c) ... .”- Thus,
the plaintiffs argue that La. R.S. 42:802(B)(8)(d) requires OGB to have any health
services contract reviewed and approved by the Office of Procurement, as well as
the standing legislative committees.
OGB, Jay Dardenne, and Caremark (the defendants) counter argue that the
plaintiffs are not entitled to a preliminary injunction because La. RS.
42:802(B)(8)(d) does not apply to the Caremark contract. The defendants argue that
the Caremark contract is a “consulting service contract” not a contract for
“healthcare services.” Therefore, the defendants argue that the Caremark contract is
not governed by La. R.S. 42:802(B)({8)(d). The defendants further argue that the
plaintiffs failed to show that they suffered irreparable harm or failed to show that
they are excused from making such a showing. The defendants assert that the
10
plaintiffs’ claim that they suffered financial losses evidences that their damages are
capable of being compensated monetarily, which is not appropriate for injunctive
relief. Thus, the defendants argue that the plaintiffs failed to demonstrate that they
were likely to prevail on the merits of their claims, precluding injunctive relief in
their favor.
The determination of whether the Caremark contract falls under La. R.S.
42:802(B)(8)(d) should be made at a trial on the merits. Therefore, we find that the
trial court did not abuse its discretion in denying the plaintiffs’ preliminary
injunction based on its finding that the plaintiffs failed to carry their burden of
proving that they were entitled to injunctive relief as a matter of law or that they
would likely prevail on the merits. See Zachary Mitigation Area, LLC v.
Tangipahoa Parish Council, 2016-1675 (La. App. 1 Cir. 9/21/17), 231 So.3d 687,
691-92.
The merits of an action may be decided during an interlocutory proceeding
only when the parties have expressly agreed to submit the case for final decision at
the hearing on the rule for a preliminary injunction. See City of Baton Rouge v.
State, ex rel. Dept. of Social Services, 2007-0005 (La. App. 1 Cir. 9/14/07), 970
So.2d 985, 995; see also Transworld Drilling Co. v. Texas General Petroleum Co..,
517 So.2d 1262, 1263 (La. App. 4 Cir. 1987) (“The trial of a rule for a preliminary
injunction cannot replace a trial on the merits, in the absence of such a stipulation
by the parties.”) The record in the instant matter reveals that there was no stipulation
between the parties agreeing to dispose of the entirety of the case during the
preliminary injunction proceeding. See Zachary Mitigation Area, LLC, 231 So.3d
at 692.
11
EXCEPTION OF RES JUDICATA
OGB and Jay Dardenne filed a peremptory exception raising the objection of
res judicata with this court. The peremptory exception raising the objection of res
judicata is based on the conclusive legal presumption that there should be no re-
ligitation of a thing previously adjudged between the same parties. Pirosko v.
Pirosko, 2022-1000 (La. App. 1 Cir. 2/24/23), 361 So.3d 1011, 1017. Res judicata
bars re-litigation of a subject matter arising from the same transaction or occurrence
of a previous suit and promotes judicial efficiency and final resolution of disputes.
Id. The burden of proving the facts essential to sustaining the objection is on the
party pleading the objection. If any doubt exists as to its application, the exception
must be overruled and the second lawsuit maintained. Davis v. J.R. Logging, Inc.,
2013-0568 (La. App. 1 Cir. 11/8/13), 136 So.3d 828, 830, writ denied, 2014-0860
(La. 6/20/14), 141 So.3d 812. The standard of review of a peremptory exception
pleading res judicata requires an appellate court to determine if the trial court’s
decision is legally correct or incorrect. Myers v. National Union Fire Ins. Co. of
Louisiana, 2009-1517 (La. App. 4 Cir. 5/19/10), 43 So.3d 207, 210, writ denied,
2010-2049 (La. 11/12/10), 49 So.3d 892. Since evidence has already been submitted
in the instant case, and the trial court has made its ruling based upon this evidence,
we have before us a question of law where a de novo review is the appropriate
standard of review. Quality Environmental Processes, Inc. v. IP Petroleum
Company, Inc., 2016-0230 (La. App. 1 Cir. 4/12/17), 219 So.3d 349, 365, writ
denied, 2017-00915 (La. 10/9/17), 227 So.3d 833.
Louisiana Revised Statutes 13:4231 sets forth the general principles for res
judicata and provides as follows:
Except as otherwise provided by law, a valid and final judgment is
conclusive between the same parties, except on appeal or other direct
review, to the following extent:
12
(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and the judgment bars a subsequent
action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect
to any issue actually litigated and determined if its determination
was essential to that judgment.
Under this provision, the Louisiana Supreme Court has emphasized that all of
the following elements must be satisfied in order for res judicata to preclude a
second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit existed at the
time of final judgment in the first litigation; and (5) the cause or causes of action
asserted in the second suit arose out of the transaction or occurrence that was the
subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La.
2/25/03), 843 So.2d 1049, 1053; Pirosko, 361 So.3d at 1017-18. The parties are the
same for the purposes of res judicata only when they appear in the same capacities
in both suits. Burguieres, 843 So.2d at 1054.
The doctrine of res judicata must be strictly construed, and any doubt
concerning its applicability is to be resolved against the party raising the objection.
Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 2001-0993 (La. App. 1
Cir. 7/3/02), 867 So.2d 709, 713. The burden of proving the facts essential to support
the objection of res judicata is on the party pleading the objection. Cadle Company,
Il, Inc. v. Linder, 2021-1361 (La. App. 1 Cir. 8/24/22), 348 So.3d 784, 788 n.3, writ
denied, 2022-01437 (La. 11/22/22), 350 So.3d 501. Further, the res judicata effect
of a prior judgment is a question of law that is reviewed de novo. Id. at 788 n.4.
13
Based on our de novo review of the record, it appears that the parties in the
Wixson suit and the parties in the instant matter are not the same. For purposes of
res judicata, an identity of parties exists whenever the same parties, their successors,
or others appear, so long as they share the same quality as parties. Capital One, N.A.
v. Service Door & Millwork, LLC, 2011-0691 (La. App. 1 Cir. 11/9/11), 2011 WL
5420374, *3 (unpublished) citing Mandalay Oil & Gas, L.L.C. v. Energy
Development Corp., 2001-0993 (La. App. 1 Cir. 8/4/04), 880 So.2d 129, 140, writ
denied, 2004-2426 (La. 1/28/05), 893 So.2d 72. Jurisprudence does not require that
the parties in the two lawsuits be physically identical as long as they share the same
quality as parties. Capital One, N.A., 2011 WL 5420374 at *3. In considering
whether an identity of parties exists for res judicata purposes, the preclusive effect
of a judgment binds the parties to the action, as well as those nonparties who are
deemed “privies” of the parties in circumstances where “the nonparty’s interests
were adequately represented by a party to the action, who may be considered the
‘virtual representative’ of the nonparty, because the interests of the party and the
nonparty are so closely aligned.” Mandalay Oil & Gas, L.L.C., 880 So.2d at 142.
Furthermore, because res judicata is to be strictly construed, any doubt concerning
its applicability must be resolved against the party raising the objection. Mandalay
Oil & Gas, L.L.C., 867 So.2d at 713.
In this case, it is undisputed that none of the Wixson plaintiffs are parties in
the instant matter except the Louisiana Independent Pharmacies Association, Inc.
However, OGB and Jay Dardenne contend that all of the parties in this case and
Wixson are the same for purposes of res judicata because they have the same
“capacity” and “quality” as the plaintiffs in both suits and assert the same interests
as the independent pharmacists and pharmacies. For purposes of res judicata, there
exists an identity of parties whenever the same parties, their successors, or others
14
appear so long as they share the same “quality” as parties, i.e., so long as they are
the same in the legal sense of the word. Joseph v. Huntington Ingalls Incorporated,
2018-02061, (La. 1/29/20), 347 So.3d 579, 584. The legal requirement of identity
of parties is met where successors or privies of the original parties assert rights
derived therefrom. Id. In connection with the doctrine of res judicata, a “privy” is
“one who, after the commencement of the action, has acquired an interest in the
subject matter affected by the judgment through or under one of the parties, as by
inheritance, succession, purchase or assignment.” Five N Company, L.L.C. v.
Stewart, 2002-0181 (La. App. | Cir. 7/2/03), 850 So.2d 51, 61.
After our de novo review of the record, we cannot say that the plaintiffs in the
instant matter have the same capacity and/or quality as the plaintiffs in the Wixson
suit such that they should be treated as the same party for purposes of res judicata.
While the plaintiffs in Wixson and the plaintiffs in the instant matter are challenging
the same Caremark contract, we find that their common interest in terminating the
contract for violations of statutory law is insufficient to establish that their interests
are so closely aligned that they have identical interests warranting res judicata. The
plaintiffs are not successors of the plaintiffs in Wixson nor are the plaintiffs in this
case the legal representatives of the plaintiffs in Wixson. Moreover, any doubt as to
the identity of parties must be resolved against the application of res judicata.
Therefore, the element that the parties must be the same for res judicata is not met,
and res judicata does not apply to this case.
THE DEFENDANTS’ ANSWERS TO APPEAL
The defendants filed answers to the appeal pursuant to La. C.C.P. art. 2133.
When an unrestricted appeal is taken from a final judgment, an appellee may seek
review of all adverse interlocutory rulings by filing an answer to the appeal. See La.
C.C.P. art. 2133(A); Thompson v. Center for Pediatric and Adolescent Medicine,
15
L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 447 n.2, writ denied,
2018-0583 (La. 6/1/18), 243 So.3d 1062. Under La. C.C.P. art. 2133, the answer to
the appeal must state what the “relief demanded” is, and the answer operates as an
appeal only from those matters “of which he complains in his answer.” Stevens v.
St. Tammany Parish Government, 2017-0959 (La. App. 1 Cir. 7/18/18), 264 So.3d
456, 466, writ denied, 2018-2062 (La. 2/18/19), 265 So.3d 773. The substantive and
procedural effect of an answer to an appeal is the same as an appeal. Succession of
Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 26.
The defendants argue that the trial court erred in denying their exceptions. We
find this argument to be without merit. In Ciolino v. Castiglia, 446 So.2d 1366,
1369-71 (La. App. 1 Cir. 1984), this court declined to address different exceptions
raised in connection with the appeal of an injunction under La. C.C.P. art. 3612. In
Ciolino, this court stated:
The ruling on the exception ... cannot be contested as part of the appeal
from the judgment on the preliminary injunction. Interlocutory
judgments affecting exceptions which do not involve irreparable injury
may only be raised with an appeal from a final judgment. Although the
preliminary injunction judgment is appealable (La. C.C.P. art. 3612), it
is still an interlocutory judgment. Further, La. C.C.P. art. 3612 does
not authorize appellate review of interlocutory judgments affecting
exceptions with an appeal from a judgment on a preliminary injunction.
[Internal citations omitted.]
As the judgment denying the plaintiffs’ preliminary injunction is an
interlocutory judgment, which is appealable only under La. C.C.P. art. 3612, and not
a final judgment, the defendants’ request for this court to review the denial of their
exceptions cannot be considered as part of this appeal. Therefore, this court is of the
opinion that appellate review of the trial court’s interlocutory judgment overruling
the various exceptions raised by the appellees is improper at this time. See Hill, 175
So.3d at 998 n.15.
16
CONCLUSION
For the above reasons, we affirm the trial court’s June 12, 2023 judgment that
denied the plaintiffs’ request for a preliminary injunction. All costs of this appeal
are assessed to the plaintiffs, Debbie Cade Vienne, Cade’s Pharmacy, LLC, Kyle
Stevens, Pharmacy Central, LLC, David Osborn, Osborn Enterprises, LLC, Orlando
Palmer, Parker’s Pharmacy and PharmplusCBD, LLC, Dr. Eric Peters, and P&C
Healthcare, LLC d/b/a Lagniappe Pharmacy 3.
AFFIRMED; EXCEPTION OF RES JUDICATA OVERRULED;
ANSWERS TO APPEAL DENIED.
17
Rodd Naquin
Clerk of Court
Docket Number: 2023 - CA - 0983
Office Of The Clerk
Court of Appeal, First Circuit
State of Louisiana
www.la-feca.org
Notice of Judgment and Disposition
May 31, 2024
Debbie Cade Vienne, Cade's Pharmacy, LLC, Kyle Stevens,
Pharmacy Central, LLC, David Osborn, Osborn Enterprises,
LLC, Orlando Palmer, and Parker's Pharmacy and Pharmplus
CBD, LLC
versus
The State of Louisiana through the Office of the Governor,
Division of Administration, Office of Group Benefits, and Jay
Dardenne, in his official capacity as Louisiana Commissioner
of Administration
To: AJ. Hebert ltl
2100 Energy Centre
1100 Poydras Street
New Orleans, LA 70163
Carey Thompson Jones
P.O.Box 94005
Baton Rouge, LA
70804-9005
JonesCar@ag_louisiana.gov
David Jeddie Smith Jr.
1885 N. 3rd Street
Baton Rouge, LA 70802
smithda@ag.louisiana.gov
J. Weston Clark
1800 City Farm Dr., Bidg.6
Baton Rouge, LA 70806
wic@longlaw.com
Jennifer Warden Hebert
2100 Energy Centre
1100 Poydras Street
New Orleans, LA 70163
Mark Edward Van Horn
1100 Poydras Street
Suite 2100
New Orleans, LA 70163
2100
mvanhorn@taggartmorton.co
Mary Eliza Baker
1800 City Farm Drive, Buildin
Baton Rouge, LA 70806
Danielle L. Borel
P.O. Box 3197
Baton Rouge, LA 70825
Danielle.Borel@bswitp.com
Angelique Duhon Freel
Louisiana Department of Jus
Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA
70804-9005
freela@ag.state.la.us
Craig P. Cassagne
P.O. Box 94005
Baton Rouge, LA 70802
CassagneC@ag_louisiana.go
Emily G. Andrews
P.O. Box 94005
Baton Rouge, LA 70802
James Wendell Clark
1800 City Farm Drive
Bidg 6
Baton Rouge, LA 70809
JWC@longlaw.com
Larry Edward Demmons
The Demmons Law Firm, LL
3300 West Esplanade Avenu
Suite 601
Metairie, LA 70002
larry¥@demmonslaw.com
Mark L. Barbre
1800 City Farm Drive
Bldg 6
Baton Rouge, LA 70806
mib@longlaw.com
Catherine Minter Maraist Est
One American Place, 23rd Fl
Post Office Box 3197
Baton Rouge, LA
70821-3197
Catherine.maraist@bswilp.co
Karl J. Koch
8702 Jefferson Highway
Suite B
Baton Rouge, LA 70809
karl@kochlawyer.com
Post Office Box 4408
Baton Rouge, LA
70821-4408
(225) 382-3000
Hon Kelly Balfour
300 North Boulevard
Suite 10401
Baton Rouge, LA 70801
In accordance with Local Rule 6 of the Court of Appeal, First Circuit, I hereby certify that this notice of judgment and
disposition and the attached disposition were transmitted this date to the trial judge or equivalent, all cour:sel of record,
and all parties not represented by counsel.
Mg —
RODD NAQUI
CLERK OF COURT
Wy
wv “o
‘ 2023 CA 0983
St
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
/ COURT OF APPEAL
FIRST CIRCUIT
o
DEBBIE CADE VIENNE, CADE’S PHARMACY, LLC, KYLE STEVENS, PHARMACY
CENTRAL, LLC, DAVID OSBORN, OSBORN ENTERPRISES, LLC, ORLANDO PALMER,
AND PARKER’S PHARMACY AND PHARMPLUS CBD, LLC
VERSUS
THE STATE OF LOUISIANA THROUGH THE OFFICE OF THE GOVERNOR, DIVISION
OF ADMINISTRATION, OFFICE OF GROUP BENEFITS, AND JAY DARDENNE, IN HIS
OFFICIAL CAPACITY AS LOUISIANA COMMISSIONER OF ADMINISTRATION
MAY 8 1 2024
Judgment Rendered:
OK KF
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. €726989, Sec. 23
The Honorable Kelly E. Balfour, Judge Presiding
eK OK
Catherine M. Maraist
Danielle L. Borel
Karl Koch
Baton Rouge, Louisiana
Attorneys for Plaintiffs/Defendants-in
Reconvention/Appellants
Debbie Cade Vienne, ef al.
Larry E. Demmons
Metairie, Louisiana
A.J. Herbert, III]
Jennifer Herbert
New Orleans, Louisiana
Attorneys for Intervenor/Appellee
CaremarkPCS Health, LLC
J. Wendell Clark
Mark L. Barbre
Attorneys for Defendants/Plaintiffs-in
Reconvention/Appellees
J. Weston Clark
Mary Eliza Baker
Baton Rouge, Louisiana
State of Louisiana, through the Office of the
Governor, Division of Administration,
Office of Group Benefits, and Jay Dardenne,
in his Official Capacity as the Louisiana
Commissioner of Administration
* OK KOK
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.
STROMBERG, J.
The plaintiffs appeal from a judgment denying their motion for a preliminary
injunction. The defendants and intervenor answered the appeal and seek a
modification of another interlocutory judgment, alleging that the trial court erred in
overruling their respective peremptory exceptions raising the objections of res
judicata, no right of action, and no cause of action, and declinatory exceptions
raising the objections of lis pendens and lack of subject matter jurisdiction.
Additionally, the defendants filed a peremptory exception raising the objection of
res judicata with this court. For the reasons that follow, we affirm, deny the answers
to the appeal, and overrule the exception of res judicata.
FACTS AND PROCEDURAL HISTORY
A contract between the Louisiana Office of Group Benefits (OGB) and
CaremarkPCS Health, LLC (Caremark) is the basis of this litigation. The plaintiffs,
Debbie Cade Vienne, Cade’s Pharmacy, LLC, Kyle Stevens, Pharmacy Central,
LLC, David Osborn, Osborn Enterprises, LLC, Orlando Palmer, and Parker’s
Pharmacy and PharmplusCBD, LLC, are independent pharmacists and independent
community retail pharmacies operating in the State of Louisiana.
On December 21, 2022, the plaintiffs filed a petition for injunctive relief and
request for a temporary restraining order, naming as defendants the State of
Louisiana through the Office of the Governor, Division of Administration, OGB,
and Jay Dardenne, in his official capacity as the Commissioner of Administration
for the State of Louisiana. In their petition, the plaintiffs sought injunctive relief to
prevent the defendants from proceeding with the proposed Caremark contract
between OGB and Caremark related to the operation of OGB’s pharmacy benefits
program. The plaintiffs alleged that the defendants were proceeding with the
contract without the final approval of the Joint Legislative Committee on the Budget
as mandated by La. R.S. 42:802(D)(1).' The plaintiffs further alleged that although
they were not required to prove that they would suffer irreparable harm without
obtaining injunctive relief, each of the plaintiffs would suffer irreparable harm. The
trial court signed an order granting the plaintiffs a temporary restraining order, which
blocked implementation of the Caremark contract while the temporary restraining
order was pending.
On December 27, 2022, Caremark filed a petition to intervene in the matter,
and the plaintiffs filed an amended and supplemental petition for injunctive relief,
adding as plaintiffs Dr. Eric Peters and P&C Healthcare, LLC d/b/a Lagniappe
Pharmacy 3. That same day, OGB and Jay Dardenne filed a peremptory exception
raising the objections of no cause of action and no right of action. OGB and Jay
Dardenne argued that the plaintiffs failed to state a cause of action because La. R.S.
42:802(D)(1) did not apply to the Caremark contract. Specifically, they argued that
the Caremark contract was a consulting service contract that was not governed by
La. R.S. 42:802(D)(1). After numerous exceptions? were filed in this matter, a
hearing was held on December 28, 2022, wherein the trial court granted the
peremptory exception raising the objection of no cause of action and dismissed the
' Louisiana Revised Statutes 42:802(D)(1) provides, in pertinent part:
[A]ny new plan of benefits or the annual plan of benefits submitted under the
direction of the commissioner of administration for the life, health, or other benefit
programs offered through the [OGB] or any professional, personal, and social
services contracts other than contracts for legal services or actuarial services
negotiated through the [OGB] under the provisions of Chapter 17 of Subtitle III of
Title 39 of the Louisiana Revised Statutes of 1950 as provided in Subsection A and
Paragraph (B)(8) of this Section or any contracts in connection therewith shall be
subject to review and final approval by the Joint Legislative Committee on the
Budget.
* On December 28, 2022, Caremark filed a peremptory exception raising the objections of no cause
of action and res judicata, a declinatory exception raising the objection of lis pendens, and a
dilatory exception raising the objection of improper joinder of parties. On December 28, 2022,
OGB and Jay Dardenne also filed a declinatory exception raising the objection of lis pendens and
a peremptory exception raising the objection of res judicata.
3
plaintiffs’ case.2 On January 19, 2023, the trial court signed a judgment in
accordance with its oral ruling, granting OGB, Jay Dardenne, and Caremark’s
peremptory exceptions raising the objection no cause of action, and dismissing all
of the claims asserted by the plaintiffs against them. The trial court’s January 19,
2023 judgment further granted Caremark’s petition for intervention, permitted the
plaintiffs to amend their petition within seven days of the judgment, and dissolved
the temporary restraining order it issued on December 21, 2022.
On January 27, 2023, the plaintiffs filed a second supplemental petition for
injunctive relief. In their petition, the plaintiffs alleged all of the same claims, facts,
and prayers for relief set forth in their original petition, except for the request for a
temporary restraining order.’ The plaintiffs alleged that the Caremark contract was
for a health care plan or system, health care service, benefits program, or other plan
or program authorized by law. The plaintiffs argued that the contract was within the
scope of authority granted to OGB by La. R.S. 42:802(B)(8)(d), which requires
approval from certain legislative committees before OGB could lawfully enter into
the Caremark contract.> Because legislative approval was not acquired before the
parties entered into the Caremark contract, the plaintiffs requested a judgment
granting a preliminary injunction in their favor prohibiting the defendants from
taking any action to proceed with the contract.
3 The record does not contain a transcript of the December 28, 2022 hearing.
4 The plaintiffs requested that after further proceedings, there be a judgment granting a permanent
injunction in their favor.
> Louisiana Revised Statutes 42:802(B)(8)(d) provides:
Any such contract shall be subject to review and final approval by the appropriate
standing committees of the legislature having jurisdiction over review of agency
rules by [OGB] as designated by [La.] R.S. 49:966(B)(21)(c), or the subcommittees
on oversight of such standing committees, and the office of state procurement of
the division of administration.
4
On February 13, 2023, Caremark filed a peremptory exception raising the
objections of no cause of action and nonjoinder of a party, and a declinatory
exception raising the objection of lis pendens. In support of its objection of lis
pendens, Caremark argued that the instant matter arose out of the same transaction
or occurrence involved in Wixson v. State Through Office of Governor, 2023-0054
(La. App. 1 Cir. 10/20/23), 377 So.3d 701. Caremark argued that both this case and
Wixson addressed the validity of the Caremark contract and sought to stop Jay
Dardenne from executing and implementing the contract. In support of its objection
of no cause of action, Caremark argued that “much like [the plaintiffs’] previously
rejected argument related to La. R.S. 42:802(D)(1), [the p]laintiffs now contend that
OGB and [Jay] Dardenne [were] in violation of La. R.S. 42:802(B)(8)(d), which
purportedly require[d] OGB contracts to obtain approval from ... standing
committees of the legislature[.]” Caremark argued that La. R.S. 42:802(B)(8)(d) did
not provide the plaintiffs relief; therefore their cause of action must be dismissed. In
support of its objection of nonjoinder of a party, Caremark argued that it should have
been joined as a party to this proceeding pursuant to La. C.C.P. art. 641° because it
was a necessary party. Caremark asserted that “because [the] [p]laintiffs’ prior and
current requests for injunctive relief [sought] to block implementation and
performance of Caremark’s ... contract with OGB, Caremark was unquestionably
required to be named as a defendant in this case pursuant to [La. C.C.P. art.] 641.”
® Louisiana Code of Civil Procedure article 641 provides:
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already
parties.
(2) He claims an interest relating to the subject matter of the action and is
so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of
incurring multiple or inconsistent obligations.
5
On March 7, 2023, OGB and Jay Dardenne filed a declinatory exception
raising the objections of is pendens and lack of subject matter jurisdiction,’ and a
peremptory exception raising the objections of res judicata, no right of action, and
no cause of action. In support of their exceptions of lis pendens and res judicata,
OGB and Jay Dardenne argued that this matter and Wixson arose out of the same
transaction and occurrence and involved “virtually the same demands for relief by
parties related to and asserting identical interests[.]” For this reason, OGB and Jay
Dardenne argued that this case should be dismissed. OGB and Jay Dardenne further
argued that the plaintiffs had no right of action under the Caremark contract because
the plaintiffs were not parties to the contract and had no cause of action for the relief
claimed because La. R.S. 42:802(B)(8)(d) did not apply to the contract at issue.
On March 7, 2023, OGB and Jay Dardenne filed an answer to the plaintiffs
original, first amended and supplemental, and second supplemental petition for
injunctive relief, which generally denied the majority of the plaintiffs’ allegations,
asserted several affirmative defenses, and raised a reconventional and third party
demands for declaratory judgment, preliminary injunction, and permanent
injunction.
On March 20, 2023 the trial court held a hearing on the various exceptions®
filed by the parties. After hearing arguments from the parties, the trial court denied
7 We note that 2023 La. Acts, No. 5, § 1 (eff. Aug. 1, 2023) deleted the objection of lack of subject
matter jurisdiction from the objections raised through a declinatory exception and added it to the
list of peremptory exceptions found in La. C.C.P. art. 927. See La. C.C.P. art. 925, Official
Revision Comments — 2023; see_also VCS, LLC v. Louisiana Department of Economic
Development, 2023-0548 (La. App. 1 Cir. 11/9/23), 379 So.3d 54, 58 n.3.
8 On March 20, 2023, defendants-in-reconvention, the State of Louisiana, Louisiana Legislature,
Senate and House of Representatives, Joint Legislative Committee, Senate Finance Committee,
and House Appropriations Committee, through Jeff Landry in his official capacity as the Attorney
General of the State of Louisiana, filed exceptions to the reconventional and third-party demands
filed by OGB and Jay Dardenne. These exceptions included a declinatory exception raising the
objections of lack of subject matter jurisdiction, insufficiency of citation, insufficiency of service
of process, and /is pendens, as well as a dilatory exception raising the objection of unauthorized
use of summary proceeding, and a peremptory exception raising the objection of no cause of
action.
all of the exceptions.? On March 21, 2023, the trial court held a hearing on the
plaintiffs’ second supplemental petition for injunctive relief. The parties stipulated
the following at the hearing: “THE CAREMARK CONTRACT, WHICH IS
EXHIBIT-2 IN THIS CASE, WAS NEVER SUBMITTED TO THE HOUSE
APPROPRIATIONS COMMITTEE OR THE SENATE FINANCE COMMITTEE,
WAS NEVER REQUESTED TO BE SUBMITTED TO EITHER OF THOSE
COMMITTEES[,] AND WAS NEVER APPROVED BY EITHER OF THOSE
COMMITTEES.” After testimony was heard and evidence was submitted, the trial
court denied the plaintiffs’ request for injunctive relief.
On June 12, 2023, the trial court signed a judgment denying Caremark’s
peremptory exception raising the objections of no cause of action and non-joinder
of a party, and denying its declinatory exception raising the objection of lis pendens.
The June 12, 2023 judgment also denied OGB and Jay Dardenne’s peremptory
exception raising the objections of no cause of action, no right of action, res judicata,
and declinatory exception raising the objections of lis pendens and lack of subject
matter jurisdiction. On June 12, 2023, the trial court also signed a judgment denying
the plaintiffs’ request for a preliminary injunction. Subsequently, the plaintiffs
appealed the trial court’s judgment denying their request for a preliminary
injunction.
After the appeal was lodged with this court, on October 24, 2023, OGB and
Jay Dardenne filed an answer to the appeal, requesting that this court review the trial
court’s denial of its declinatory exception raising the objections of lis pendens and
lack of subject matter jurisdiction, and peremptory exception raising the objections
of res judicata, no right of action, and no cause of action. On October 24, 2023,
Caremark also filed an answer to the appeal, requesting that this court grant its
° The record does not contain a transcript of the March 20, 2023 hearing.
7
peremptory exception raising the objection of no cause of action and declinatory
exception raising the objection of /is pendens.
On January 18, 2024, OGB and Jay Dardenne filed a peremptory exception
raising the objection of res judicata with this court. OGB and Jay Dardenne argued
that this court’s decision in Wixson affirmed the dismissal of the similarly-situated
plaintiffs’ claims as in this case. OGB and Jay Dardenne asserted that because
Wixson was final, the plaintiffs’ claims in this case were barred by res judicata and
must be dismissed. The plaintiffs opposed OGB and Jay Dardenne’s peremptory
exception raising the objection of res judicata, arguing that their claims were not
barred by Wixson because the parties were not the same. The plaintiffs argued that
all the elements of res judicata, including identity of parties, must be satisfied for
their suit to be precluded. See Carollo v. Department_of Transportation and
Development, 2021-01670 (La. 9/1/22), 346 So.3d 751, 753-54. Therefore, the
plaintiffs argued that the peremptory exception raising the objection of res judicata
should be denied.
APPLICABLE LAW
An injunction shall be issued in cases where irreparable injury, loss, or
damage may otherwise result to the applicant, or in other cases specifically provided
by law. See La. C.C.P. art. 3601(A). The writ of injunction, a harsh, drastic, and
extraordinary remedy, should only issue in those instances where the moving party
is threatened with irreparable loss or injury and is without an adequate remedy at
law. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-
0270 (La. App. 1 Cir. 3/24/05), 906 So.2d 660, 664. Generally, irreparable injury
means a loss that cannot be adequately compensated in money damages or measured
by a pecuniary standard. Louisiana Vaping Association v. Department of Revenue,
2020-0816 (La. App. 1 Cir. 2/19/21), 318 So.3d 221, 225, writ denied, 2021-00415
(La. 5/11/21), 315 So.3d 869; Concerned Citizens, 906 So.2d at 664.
A preliminary injunction is an interlocutory judgment designed to preserve
the status quo between the parties pending a trial on the merits. Stevens Construction
& Design, L.L.C. v. St. Tammany Fire Protection District No. 1, 2018-1759 (La.
App. | Cir. 1/16/20), 295 So.3d 954, 957-58 (en banc), writ denied, 2020-00977 (La.
11/4/20), 303 So.3d 650. A preliminary injunction is issued in summary proceedings
incidental to the main demand for permanent injunctive relief. Concerned Citizens,
906 So.2d at 664. Generally, a party seeking the issuance of a preliminary injunction
must show that it will suffer irreparable injury if the injunction does not issue and
must show entitlement to the relief sought; this must be done by a prima facie
showing that the party will prevail on the merits of the case. Id. However, a
petitioner is entitled to injunctive relief without the requisite showing of irreparable
injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e.,
when the conduct sought to be enjoined constitutes a direct violation of a prohibitory
law and/or a violation of a constitutional right. Davenport v. Chew, 2023-0036 (La.
App. | Cir. 9/15/23), 375 So.3d 973, 976.
Although the judgment on the preliminary injunction is interlocutory, a party
aggrieved by a judgment either granting or denying a preliminary injunction is
entitled to an appeal. La. C.C.P. art. 3612(B); Hill v. Jindal, 2014-1757 (La. App. 1
Cir. 6/17/15), 175 So.3d 988, 1002, writ denied, 2015-1394 (La. 10/23/15), 179
So.3d 600. Appellate review of a trial court’s issuance of a preliminary injunction
is limited. The issuance of a preliminary injunction addresses itself to the sound
discretion of the trial court and will not be disturbed on review unless a clear abuse
of discretion has been shown. Neill Corp. v. Shutt, 2020-0269 (La. App. 1 Cir.
1/25/21), 319 So.3d 872, 878.
DISCUSSION
The only issue before this court is whether the trial court erred in denying the
plaintiffs’ request for a preliminary injunction. The plaintiffs claim that they are
entitled to a preliminary injunction prohibiting OGB from contracting with
Caremark to provide healthcare services to OGB’s plan beneficiaries. The plaintiffs
argue that the trial court’s denial of their preliminary injunction was in error because
La. R.S. 42:802(B)(8)(d) requires healthcare services contracts to obtain final
approval from certain standing legislative committees before those contracts can be
implemented. Specifically, the plaintiffs argue that La. R.S. 42:802 sets forth the
powers and duties of OGB. According to the plaintiffs, La. R.S. 42:802(B)(8) is the
statutory section that authorizes OGB to enter into contracts for health care services.
In support of their argument, the plaintiffs rely on La. R.S. 42:802(B)(8)(d), which
provides “[a]ny such contract shall be subject to review and final approval by the
appropriate standing committees of the legislature having jurisdiction over review
of agency rules by [OGB] as designated by [La.] R.S. 49:966(B)(21)(c) ... .”. Thus,
the plaintiffs argue that La. R.S. 42:802(B)(8)(d) requires OGB to have any health
services contract reviewed and approved by the Office of Procurement, as well as
the standing legislative committees.
OGB, Jay Dardenne, and Caremark (the defendants) counter argue that the
plaintiffs are not entitled to a preliminary injunction because La. RS.
42:802(B)(8)(d) does not apply to the Caremark contract. The defendants argue that
the Caremark contract is a “consulting service contract” not a contract for
“healthcare services.” Therefore, the defendants argue that the Caremark contract is
not governed by La. R.S. 42:802(B)(8)(d). The defendants further argue that the
plaintiffs failed to show that they suffered irreparable harm or failed to show that
they are excused from making such a showing. The defendants assert that the
10
plaintiffs’ claim that they suffered financial losses evidences that their damages are
capable of being compensated monetarily, which is not appropriate for injunctive
relief. Thus, the defendants argue that the plaintiffs failed to demonstrate that they
were likely to prevail on the merits of their claims, precluding injunctive relief in
their favor.
The determination of whether the Caremark contract falls under La. R.S.
42:802(B)(8)(d) should be made at a trial on the merits. Therefore, we find that the
trial court did not abuse its discretion in denying the plaintiffs’ preliminary
injunction based on its finding that the plaintiffs failed to carry their burden of
proving that they were entitled to injunctive relief as a matter of law or that they
would likely prevail on the merits. See Zachary Mitigation Area, LLC v.
Tangipahoa Parish Council, 2016-1675 (La. App. 1 Cir. 9/21/17), 231 So.3d 687,
691-92.
The merits of an action may be decided during an interlocutory proceeding
only when the parties have expressly agreed to submit the case for final decision at
the hearing on the rule for a preliminary injunction. See City of Baton Rouge v.
State, ex rel. Dept. of Social Services, 2007-0005 (La. App. 1 Cir. 9/14/07), 970
So.2d 985, 995; see also Transworld Drilling Co. v. Texas General Petroleum Co.,
517 So.2d 1262, 1263 (La. App. 4 Cir. 1987) (“The trial of a rule for a preliminary
injunction cannot replace a trial on the merits, in the absence of such a stipulation
by the parties.”) The record in the instant matter reveals that there was no stipulation
between the parties agreeing to dispose of the entirety of the case during the
preliminary injunction proceeding. See Zachary Mitigation Area, LLC, 231 So.3d
at 692.
11
EXCEPTION OF RES JUDICATA
OGB and Jay Dardenne filed a peremptory exception raising the objection of
res judicata with this court. The peremptory exception raising the objection of res
judicata is based on the conclusive legal presumption that there should be no re-
ligitation of a thing previously adjudged between the same parties. Pirosko_v.
Pirosko, 2022-1000 (La. App. 1 Cir. 2/24/23), 361 So.3d 1011, 1017. Res judicata
bars re-litigation of a subject matter arising from the same transaction or occurrence
of a previous suit and promotes judicial efficiency and final resolution of disputes.
Id. The burden of proving the facts essential to sustaining the objection is on the
party pleading the objection. If any doubt exists as to its application, the exception
must be overruled and the second lawsuit maintained. Davis v. J.R. Logging, Inc.,
2013-0568 (La. App. 1 Cir. 11/8/13), 136 So.3d 828, 830, writ denied, 2014-0860
(La. 6/20/14), 141 So.3d 812. The standard of review of a peremptory exception
pleading res judicata requires an appellate court to determine if the trial court’s
decision is legally correct or incorrect. Myers v. National Union Fire Ins. Co. of
Louisiana, 2009-1517 (La. App. 4 Cir. 5/19/10), 43 So.3d 207, 210, writ denied,
2010-2049 (La. 11/12/10), 49 So.3d 892. Since evidence has already been submitted
in the instant case, and the trial court has made its ruling based upon this evidence,
we have before us a question of law where a de novo review is the appropriate
standard of review. Quality Environmental Processes, Inc. v. IP Petroleum
Company, Inc., 2016-0230 (La. App. 1 Cir. 4/12/17), 219 So.3d 349, 365, writ
denied, 2017-00915 (La. 10/9/17), 227 So.3d 833.
Louisiana Revised Statutes 13:4231 sets forth the general principles for res
judicata and provides as follows:
Except as otherwise provided by law, a valid and final judgment is
conclusive between the same parties, except on appeal or other direct
review, to the following extent:
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(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and the judgment bars a subsequent
action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect
to any issue actually litigated and determined if its determination
was essential to that judgment.
Under this provision, the Louisiana Supreme Court has emphasized that all of
the following elements must be satisfied in order for res judicata to preclude a
second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit existed at the
time of final judgment in the first litigation; and (5) the cause or causes of action
asserted in the second suit arose out of the transaction or occurrence that was the
subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La.
2/25/03), 843 So.2d 1049, 1053; Pirosko, 361 So.3d at 1017-18. The parties are the
same for the purposes of res judicata only when they appear in the same capacities
in both suits. Burguieres, 843 So.2d at 1054.
The doctrine of res judicata must be strictly construed, and any doubt
concerning its applicability is to be resolved against the party raising the objection.
Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 2001-0993 (La. App. 1
Cir. 7/3/02), 867 So.2d 709, 713. The burden of proving the facts essential to support
the objection of res judicata is on the party pleading the objection. Cadle Company,
II, Inc. v. Linder, 2021-1361 (La. App. 1 Cir. 8/24/22), 348 So.3d 784, 788 n.3, writ
denied, 2022-01437 (La. 11/22/22), 350 So.3d 501. Further, the res judicata effect
of a prior judgment is a question of law that is reviewed de novo. Id. at 788 n.4.
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Based on our de novo review of the record, it appears that the parties in the
Wixson suit and the parties in the instant matter are not the same. For purposes of
res judicata, an identity of parties exists whenever the same parties, their successors,
or others appear, so long as they share the same quality as parties. Capital One, N.A.
v. Service Door & Millwork, LLC, 2011-0691 (La. App. 1 Cir. 11/9/11), 2011 WL
5420374, *3 (unpublished) citing Mandalay Oil & Gas, L.L.C. v. Energy
Development Corp., 2001-0993 (La. App. 1 Cir. 8/4/04), 880 So.2d 129, 140, writ
denied, 2004-2426 (La. 1/28/05), 893 So.2d 72. Jurisprudence does not require that
the parties in the two lawsuits be physically identical as long as they share the same
quality as parties. Capital One, N.A., 2011 WL 5420374 at *3. In considering
whether an identity of parties exists for res judicata purposes, the preclusive effect
of a judgment binds the parties to the action, as well as those nonparties who are
deemed “privies” of the parties in circumstances where “the nonparty’s interests
were adequately represented by a party to the action, who may be considered the
‘virtual representative’ of the nonparty, because the interests of the party and the
nonparty are so closely aligned.” Mandalay Oil & Gas, L.L.C., 880 So.2d at 142.
Furthermore, because res judicata is to be strictly construed, any doubt concerning
its applicability must be resolved against the party raising the objection. Mandalay
Oil & Gas, L.L.C., 867 So.2d at 713.
In this case, it is undisputed that none of the Wixson plaintiffs are parties in
the instant matter except the Louisiana Independent Pharmacies Association, Inc.
However, OGB and Jay Dardenne contend that all of the parties in this case and
Wixson are the same for purposes of res judicata because they have the same
“capacity” and “quality” as the plaintiffs in both suits and assert the same interests
as the independent pharmacists and pharmacies. For purposes of res judicata, there
exists an identity of parties whenever the same parties, their successors, or others
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appear so long as they share the same “quality” as parties, i.e., so long as they are
the same in the legal sense of the word. Joseph v. Huntington Ingalls Incorporated,
2018-02061, (La. 1/29/20), 347 So.3d 579, 584. The legal requirement of identity
of parties is met where successors or privies of the original parties assert rights
derived therefrom. Id. In connection with the doctrine of res judicata, a “privy” is
“one who, after the commencement of the action, has acquired an interest in the
subject matter affected by the judgment through or under one of the parties, as by
inheritance, succession, purchase or assignment.” Five N Company, L.L.C. v.
Stewart, 2002-0181 (La. App. 1 Cir. 7/2/03), 850 So.2d 51, 61.
After our de novo review of the record, we cannot say that the plaintiffs in the
instant matter have the same capacity and/or quality as the plaintiffs in the Wixson
suit such that they should be treated as the same party for purposes of res judicata.
While the plaintiffs in Wixson and the plaintiffs in the instant matter are challenging
the same Caremark contract, we find that their common interest in terminating the
contract for violations of statutory law is insufficient to establish that their interests
are so closely aligned that they have identical interests warranting res judicata. The
plaintiffs are not successors of the plaintiffs in Wixson nor are the plaintiffs in this
case the legal representatives of the plaintiffs in Wixson. Moreover, any doubt as to
the identity of parties must be resolved against the application of res judicata.
Therefore, the element that the parties must be the same for res judicata is not met,
and res judicata does not apply to this case.
THE DEFENDANTS’ ANSWERS TO APPEAL
The defendants filed answers to the appeal pursuant to La. C.C.P. art. 2133.
When an unrestricted appeal is taken from a final judgment, an appellee may seek
review of all adverse interlocutory rulings by filing an answer to the appeal. See La.
C.C.P. art. 2133(A); Thompson v. Center for Pediatric and Adolescent Medicine,
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L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 447 n.2, writ denied,
2018-0583 (La. 6/1/18), 243 So.3d 1062. Under La. C.C.P. art. 2133, the answer to
the appeal must state what the “relief demanded” is, and the answer operates as an
appeal only from those matters “of which he complains in his answer.” Stevens v.
St. Tammany Parish Government, 2017-0959 (La. App. 1 Cir. 7/18/18), 264 So.3d
456, 466, writ denied, 2018-2062 (La. 2/18/19), 265 So.3d 773. The substantive and
procedural effect of an answer to an appeal is the same as an appeal. Succession of
Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 26.
The defendants argue that the trial court erred in denying their exceptions. We
find this argument to be without merit. In Ciolino v. Castiglia, 446 So.2d 1366,
1369-71 (La. App. 1 Cir. 1984), this court declined to address different exceptions
raised in connection with the appeal of an injunction under La. C.C.P. art. 3612. In
Ciolino, this court stated:
The ruling on the exception ... cannot be contested as part of the appeal
from the judgment on the preliminary injunction. Interlocutory
Judgments affecting exceptions which do not involve irreparable injury
may only be raised with an appeal from a final judgment. Although the
preliminary injunction judgment is appealable (La. C.C.P. art. 3612), it
is still an interlocutory judgment. Further, La. C.C.P. art. 3612 does
not authorize appellate review of interlocutory judgments affecting
exceptions with an appeal from a judgment on a preliminary injunction.
[Internal citations omitted. ]
As the judgment denying the plaintiffs’ preliminary injunction is an
interlocutory judgment, which is appealable only under La. C.C.P. art. 3612, and not
a final judgment, the defendants’ request for this court to review the denial of their
exceptions cannot be considered as part of this appeal. Therefore, this court is of the
opinion that appellate review of the trial court’s interlocutory judgment overruling
the various exceptions raised by the appellees is improper at this time. See Hill, 175
So.3d at 998 n.15.
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CONCLUSION
For the above reasons, we affirm the trial court’s June 12, 2023 judgment that
denied the plaintiffs’ request for a preliminary injunction. All costs of this appeal
are assessed to the plaintiffs, Debbie Cade Vienne, Cade’s Pharmacy, LLC, Kyle
Stevens, Pharmacy Central, LLC, David Osborn, Osborn Enterprises, LLC, Orlando
Palmer, Parker’s Pharmacy and PharmplusCBD, LLC, Dr. Eric Peters, and P&C
Healthcare, LLC d/b/a Lagniappe Pharmacy 3.
AFFIRMED; EXCEPTION OF RES JUDICATA OVERRULED;
ANSWERS TO APPEAL DENIED.
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