Edward Colbert v. Theodore Brennan
752 F.3d 412
5th Cir.2014Background
- Kenyon & Kenyon represented Brennan’s Inc. in trademark litigation and obtained state-court judgments for unpaid fees against Brennan’s Inc.; Kenyon assigned those judgments to Brennan’s Claims, L.L.C.
- Kenyon sued Ted Brennan and Brennan’s Inc. in federal court (oblique action) alleging Brennan’s Inc. made loans to Ted Brennan and failed to collect, impairing creditor recovery.
- Defendants repeatedly violated discovery orders; the district court issued sanctions, including deeming Kenyon proved the elements of an oblique action and precluding certain testimony and evidence.
- After a bench trial where only Kenyon’s witness testified, the district court entered judgment allowing Kenyon to pursue collection against Ted Brennan for multi-million-dollar sums tied to the state judgments.
- Ted Brennan filed a notice of appeal, then voluntarily moved to dismiss the appeal (granted by the clerk); months later he moved a single judge of this Court to reinstate the appeal arguing settlement had failed.
- The Fifth Circuit held that Brennan’s voluntary dismissal voided his notice of appeal, his later reinstatement motion was untimely under Fed. R. App. P. 4(a), and therefore the court lacked jurisdiction to hear the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court has appellate jurisdiction given the procedural history | Kenyon: No timely notice of appeal exists; voluntary dismissal voided the original notice, so no jurisdiction | Brennan: Original notice remained effective or reinstatement cured dismissal; single judge could reinstate appeal | Held: No jurisdiction — voluntary dismissal voided the notice and reinstatement was untimely under Rule 4(a) |
| Whether voluntary dismissal of an appeal can be revived after the appeal period expires | Kenyon: A voluntary dismissal places appellant in same position as never filing a notice; revival after the deadline is ineffective | Brennan: Reinstatement should be permitted (argued discretion/good cause) | Held: Voluntary dismissal cannot be revived after Rule 4(a) deadlines; deadlines are jurisdictional following Bowles |
| Whether a single judge’s reinstatement order cured the jurisdictional defect | Kenyon: Single-judge reinstatement does not overcome jurisdictional Rule 4(a) defect | Brennan: Single judge had authority and discretion to reinstate appeal | Held: Single-judge reinstatement did not cure the absence of a timely notice; court still lacked jurisdiction |
Key Cases Cited
- Brennan’s Inc. v. Dickie Brennan & Co., Inc., 376 F.3d 356 (5th Cir.) (background litigation between parties)
- Williams v. United States, 553 F.2d 420 (5th Cir. 1977) (voluntary dismissal of appeal voids notice of appeal)
- Bowles v. Russell, 551 U.S. 205 (2007) (timely filing requirements for appeals are jurisdictional)
- Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992) (treating voluntarily dismissed notice as having no continuing effect)