Brennan's, Inc. v. Colbert
125 So. 3d 537
La. Ct. App.2013Background
- Brennan’s Inc. previously appealed trial-court rulings; this Court on 12/12/2012 remanded the appeal (No. 2012-0145) to the trial court to perfect the record (transcripts and filings) for re-docketing on return to this Court.
- On 7 March 2013 Brennan’s filed a motion in the trial court to dismiss ‘‘all appeals’’ with prejudice; the trial court signed an order (dated 8 March 2013) dismissing Brennan’s appeals relating to multiple judgments.
- On 9 May 2013 Brennan’s filed both a motion to reconsider/vacate the March 2013 consent dismissal and a motion for a devolutive appeal of the March 7/8, 2013 dismissal; the trial court signed an order granting the devolutive appeal on 9 May 2013.
- Opposing parties (Colbert/Kenyon and Brennan’s Claims LLC) moved to dismiss the appeal before this Court, arguing the trial court lacked jurisdiction to dismiss appeals while an earlier appeal was pending.
- The Fourth Circuit determined the 8 March 2013 dismissal order was an absolute nullity because the trial court had been divested of jurisdiction when the earlier appeal (No. 2012-0145) had been granted and only the appellate court retained jurisdiction over matters reviewable on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court validly dismissed Brennan’s pending appeals by its 8 March 2013 order | Brennan’s (via motion) sought dismissal of its appeals and contended the trial court could enter that dismissal | Colbert/Kenyon and Brennan’s Claims argued the trial court lacked jurisdiction because an appeal was already pending | The 8 March 2013 order is an absolute nullity: trial court lacked jurisdiction to dismiss the appeals once the prior appeal had been granted |
| Whether a devolutive appeal may lie from an absolutely null trial-court order | Brennan’s filed for a devolutive appeal from the 8 March 2013 order | Opponents argued no appeal lies from an absolutely null order | Appeal from an absolutely null order is itself null; the Court dismissed the present appeal |
| Proper forum to seek dismissal of an appeal while an appeal is pending | Brennan’s (or its counsel) filed the dismissal motion in the trial court | Opponents argued the motion to dismiss an appeal pending in the appellate court must be brought in the appellate court | The motion to dismiss the appeal should have been filed in this Court, not the trial court; trial court had no authority to dismiss the pending appeal |
Key Cases Cited
- James v. Formosa Plastics Corp. of Louisiana, 813 So.2d 335 (La. 2002) (trial court loses jurisdiction on granting of an appeal; exceptions are narrow)
- Succession of Illg, 154 So.2d 2 (La. 1934) (historical principle that trial court lacks jurisdiction after appeal granted)
- JCM Constr. Co., Inc. v. Orleans Parish Sch. Bd., 860 So.2d 610 (La. App. 4 Cir. 2003) (trial-court order vacating judgment after appeal granted is void)
- Hughes v. Energy & Marine Underwriters, Inc., 8 So.3d 743 (La. App. 5 Cir. 2009) (trial court dismissed a case despite article 2088 jurisdictional constraints; dismissal not permitted)
- Tealwood Props., LLC v. Succession of Graves, 105 So.3d 120 (La. App. 2 Cir. 2012) (a judgment entered after divestiture of jurisdiction is an absolute nullity)