Opinion · Court of Appeals for the Fifth Circuit

Browning v. Navarro

Browning v. Navarro, 894 F.2d 99 (5th Cir. 1990)

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1990-01-26
Topic: general

How later courts describe this case

holding that the reversal of a judgment cannot inure to the benefit of a party that was not named in the notice of appeal
“Generally speaking, a party may not raise an argument for the first time in a petition for rehearing.”

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UpLaw has not yet analyzed Browning v. Navarro. The absence of a flag is not a finding that it is good law.

Cited by: 48 opinions

BROWNING v. NAVARRO,894 F.2d 99(5th Cir. 1990)

JANE H. BROWNING, INDIVIDUALLY AND AS CO-INDEPENDENT EXECUTRIX OF THE ESTATE

OF WILLIAM W. BROWNING, JR., ET AL., PLAINTIFFS-APPELLEES, v. DON NAVARRO,

INDIVIDUALLY AND AS TRUSTEE FOR PAT S. HOLLOWAY, ET AL., DEFENDANTS, PAT S.

HOLLOWAY, DEFENDANT-APPELLANT.

JANE H. BROWNING, ET AL., PLAINTIFFS-APPELLANTS, v. DON NAVARRO, ET AL.,

DEFENDANTS-APPELLEES.

Nos. 88-1761, 88-1894.

United States Court of Appeals, Fifth Circuit.

January 26, 1990.

Page 100

Pat S. Holloway, pro se.

R. Jack Ayres, Jr., Thomas V. Murto, III, Law Offices of R. Jack Ayres, Jr., Dallas, Tex., for plaintiffs-appellees.

J. Albert Kroemer, Dallas, Tex., for Robbie Holloway.

Appeals from the United States District Court For the Northern District of Texas.

[1] ON PETITIONS FOR REHEARING

[2] (Opinion Oct. 23, 1989, 5 Cir., 1989,887 F.2d 553)

Before POLITZ, DAVIS and DUHE, Circuit Judges.

DUHE, Circuit Judge:

[3] InBrowning v. Navarro,887 F.2d 553(5th Cir. 1989) (Browning III), we held that the preclusive effect ofHollowayv. Walker,784 F.2d 1287(5th Cir.) (per curiam),cert.denied,479 U.S. 984,107 S.Ct. 571,93 L.Ed.2d 576(1986) barred the Holloways from attacking a state court judgment (the Walker judgment) on the ground that it was fraudulently obtained. The result of our decision was to allow the judgment creditors, the Brownings, to retain the spoils of their state court victory. The Holloways now seek a rehearing. All of the arguments which they make, except one, were dealt with inBrowning IIIand we will not revisit them. The Holloways now argue on rehearing, for the first time, that Robbie Holloway should not be precluded byres judicatabecause she was not a party toHolloway v.Walker.

[4] Generally speaking a party may not raise an argument for the first time in a petition for rehearing.See, e.g., United Statesv. Bigler,817 F.2d 1139,1140(5th Cir.),cert. denied,484 U.S. 842,108 S.Ct. 130,98 L.Ed.2d 88(1987) andWells v.Rushing,760 F.2d 660,661(5th Cir. 1985). Before we can grapple with whether Robbie Holloway is procedurally barred from raising this issue, we must decide whether she is a proper party to this appeal.

[5] Robbie Holloway did not appeal the district court's judgment of May 23, 1986 which held that the Walker judgment was valid. The Brownings argue that the May 23 judgment, therefore, is final as to her. Robbie Holloway argues that the May 23 judgment was reversed in part byBrowning v. Navarro,826 F.2d 335(5th Cir. 1987) (Browning II) and that underAnnat v. Beard,277 F.2d 554,558(5th Cir.),cert. denied,364 U.S. 908,81 S.Ct. 270,5 L.Ed.2d 223(1960) she should be allowed to share in the fruits of Pat Holloway's partial victory inBrowning II.

[6] There is language inAnnatwhich supports Robbie Holloway's position. TheAnnatcourt stated "A reversal on appeal does not inure to the benefit of those who did not join in the appeal unless the interests of the non-appealing parties are so interwoven and dependent as to be inseparable."277 F.2d at 558. This language, however, is no longer good law in light ofTorresv. Oakland Scavenger Co.,487 U.S. 312,108 S.Ct. 2405,101 L.Ed.2d 285(1988). TheTorresCourt held that the failure to name a party in the notice of appeal was a jurisdictional defect.Id.108 S.Ct. at 2409. Thus we did not have jurisdiction over Robbie Holloway inBrowning IIand our decision to reverse could not inure to her benefit.

[7] The petition for rehearing, therefore, is DENIED.Page 101