Opposition Brief — Brennan's, Inc. v. Brennan (No. 05-1040)

origin and dilution under federal and Louisiana trade-

mark law, arising out of alleged breaches of the 1998

Agreement by the Dickie Brennan Group. Brennan’s also

sought nullification of the 1998 Agreement on the ground

that Dickie had allegedly fraudulently induced it to enter

into the 1998 Agreemert. Brennan’s further claimed that

Dickie had materially breached the 1998 Agreement and

that it should be judicially terminated as a result. Bren-

nan’s ultimate objective was to have the 1998 Agreement

terminated, on any grounds and under any theory avail-

able, so that it could try to prevent Dickie from using his

name on his restaurants.

Brennan I was tried before a jury, over a two-week

period in late October-early November, 2002. To Brennan’s

utter dismay, the jury found that Dickie had not fraudu-

lently induced Brennan’s to enter into the 1998 Agreement

and that Dickie had not breached the 1998 Agreement in

such a way as to warrant its termination. The jury's

verdict, instead, upheld the validity and effectiveness of the

1998 Agreement and maintained it in full force and effect,

subject to Dickie’s obligation of performance — certainly not

the result that Brennan's desired or expected.

Brennan’s filed post-trial challenges to the jury's

verdict, which were rejected by the district court. Bren-

nan’s then appealed to the Fifth Circuit Court of Appeals.

On appeal, Brennan's challenged the jury’s verdict on the

issue of fraudulent inducement, but did not appeal the

jury's verdict on the issue of whether the 1998 Agreement

should be terminated on account of alleged egregious,

material breaches of it. On June 28, 2004, the Fifth Circuit

rendered judgment remanding to the district court certain

federal] trademark issues, and affirming, in all respects,

the jury’s verdict on the issue of fraudulent inducement -

i.e., that Dickie did not fraudulently induce Brennan's into

6

entering into the 1998 Agreement, as well as the determi-

nation that the 1998 Agreement should not be terminated.

Thus, the 1998 Agreement remained in full force and effect

following the Fifth Circuit’s opinion in Brennan I. The

judgment in Brennan I is now final between Brennan’s

and the Dickie Brennan Group as to all claims asserted in

Brennan I, and, under the doctrine of res judicata, as to

“all grounds for, or defenses to, recovery that were previ-

ously available to the parties, regardless of whether they

were asserted or determined in the prior proceeding.”

Brown v. Felsen, 442 U.S. 127, 131 (1979).

Vexed by, and dissatisfied with, the outcome of Bren-

nan I, Brennan’s then fired both the nationally known

trademark attorneys and the local attorneys who had

represented it in Brennan I and hired new counsel to

represent and advise it, going forward, with regard to the

remanded trademark issues. Brennan’s ultimately elected

not to assert any claims on remand, instead choosing to

pursue yet another theory for terminating the 1998

Agreement that had been “discovered” by its new counsel-—

namely, that the 1998 Agreement is terminable at Bren-

nan’s whim under Louisiana Civil Code Article 2024

because it allegedly does not contain a term.

After its “discovery” of the new contractual termina-

tion theory — a ground for termination which was available

at the time of Brennan I, but which was not asserted and

obviously not discovered by Brennan’s former counsel —

Brennan’s new counsel sent a letter to Dickie, dated

August 5, 2004, (the “August 5 Letter”), notifying him that

Brennan’s was exercising its purported right, under

Louisiana Civil Code Article 2024, to terminate the 1998

Agreement. The August 5 Letter notified Dickie that the

1998 Agreement was being terminated and demanded that

Dickie cease the use of the name “Brennan” in connection

with his restaurant operations on or before October 5,

2004, the same relief sought in Brennan IJ.

Dickie did not, and does not, recognize any right of

termination under Louisiana Civil Code Article 2024 and

did not acquiesce in Brennan’s demand that he cease using

his name in connection with his restaurant operations.

Although Brennan I was still on remand at the time,

Brennan’s filed a new complaint in the United States

District Court for the Eastern District of Louisiana,

against the Dickie Brennan Group, seeking termination of

the 1998 Agreement under Article 2024, and injunctive

relief. Although, for strategic reasons, Brennan’s filed its

second termination suit as a separate complaint, rather

than as a matter pendent to its then-existing remaining

claims for trademark infringement under the same 1998

Agreement, the case is really nothing more than the

continuation of Brennan I, the ultimate goal of which, was

to have the 1998 Agreement judicially terminated.

The new suit, Brennan II, was ultimately assigned to

the same district judge who presided in Brennan I. In

response to the new complaint, the Dickie Brennan Group

filed a Motion to Dismiss the complaint under F.R.C.P.

12(b) based on res judicata.

On April 11, 2005, the district court, in a well reasoned

opinion, granted the motion to dismiss. See District Court

Opinion in Brennan II, App. to Petition, p. 3. The court noted

that the only area of dispute between the parties for pur-

poses of res judicata analysis was whether Brennan I and

Brennan II involved the “same claim or cause of action.” The

court applied the “transactional” test of the Restatement

(Second) of Judgments, § 24 (1982) (the “Restatement”), the

test adopted by the Fifth Circuit for analyzing whether

actions involve the “same claim or cause of action,” and

8

specifically found that both actions sought termination of the

1998 Agreement, and that, although the grounds for termi-

nation were different in the two cases, the theory, or grounds

for termination, asserted in Brennan II existed at the time

the initial termination suit was filed in Brennan I and could

have, and should have, been raised in Brennan I. Accord-

ingly, the court ruled that the claims asserted in Brennan II

are barred by res judicata. Brennan’s appealed that judg-

ment to the Fifth Circuit.

On June 23, 2004, while the appeal was pending in

Brennan II, in a surprising move — and one that Respon-

dents believe is relevant to the issue of whether Brennan I

and Brennan II involve the same cause of action for res

judicata purposes — Brennan’s filed a Louisiana state court

suit against its former counsel in Brennan I, alleging that

they had committed legal malpractice by failing to seek

termination of the 1998 Agreement under Article 2024.* In

the Malpractice Action, Brennan’s expressly asserted that

the cause of action for termination under Article 2024 could

have, and should have, been asserted in Brennan I, and

cited counsel’s failure to do so as an incident of legal mal-

practice. Supp. Appendix hereto, pp. 10-11, par. 28.

The Fifth Circuit ultimately affirmed the district court’s

ruling in a per curiam opinion, agreeing that the claims

asserted in Brennan II arise from the “transaction” or “series

of transactions” which were at the center of Brennan I - i.e.,

the 1998 Agreement and Brennan’s attempt to terminate it

* See the Petition filed in Brennan's Inc. v. Edward Tuck Colbert,

Kenyon & Kenyon, Leon H. Rittenberg, Jr., And Baldwin Haspel, L.L.C.

finla Baldwin & Haspel, L.L.C., No. 2005-8471 on the docket of the

Civil District Court for the Parish of Orleans, State of Louisiana

(hereinafter referred to as the “Malpractice Suit”), a copy of which

appears in the Supplemental Appendix filed together herewith, p. 1.

9

under any available theory — and therefore, constitute the

same cause of action for purposes of res judicata. The Fifth

Circuit found that the claims in Brennan II should have been

asserted in Brennan I, but were not, and are now barred. See

Fifth Circuit opinion in Brennan II, App. to Petition, p. 1.

Brennan’s petitioned the Fifth Circuit for an en banc rehear-

ing, which was also denied. Jd., 22-23. Brennan’s now seeks

to invoke the supervisory jurisdiction of this Court to review

the Fifth Circuit’s decision.

te

vv

REASONS FOR DENYING THE PETITION

Nowhere in the Petition does Brennan’s state which

part(s) of Rule 10 of this Court’s Rules supports its request

that this Court exercise its supervisory jurisdiction over

this matter. From the text of the Petition, however, it

appears that Brennan’s is relying on Rule 10(a) and (c). In

addition, even though it has not identified any provision in

Rule 10 that arguably supports its request, Brennan’s asks

this Court to overturn the Fifth Circuit’s application of the

“transactional” test to the facts of this case. As will be

demonstrated below, however, there is no compelling

reason, under any part of Rule 10, warranting the exercise

of supervisory jurisdiction in this matter.

A. The Law With Regard To The Application Of

Res Judicata Has Been Sufficiently Developed

By This Court And The Fifth Circuit’s Opinion

Is Not In Conflict With The Jurisprudence Of

This Court.

The doctrine of res judicata has been an accepted

tenent of the law for longer than there have been courts in

this country. See Washington v. Sickles, 65 U.S. 333, 343

10

(1861) (“[t]he authority of res judicata, with the limitations

under which it is admitted, is derived by us from the

Roman law and the Canonists). The doctrine is well-

developed in the jurisprudence of this Court, which has

characterized it as serving a ‘vital public interest,’ namely,

that of putting an end to litigation, such that ‘those who

have contested an issue shall be bound by the result of the

contest and that matters once tried shall be considered

forever settled as between the parties.’” Federated De-

partment Stores, 452 U.S. at 401. (Citations omitted). See

also Cromwell, 94 U.S. at 352 (A final judgment “is a

finality as to the claim or demand in controversy conclud-

ing parties and those in privity with them, not only as to

every matter which was offered and received to sustain or

defeat the claim or demand, but as to any other admissi-

ble matter which might have been offered for that pur-

pose.”); Sunnen, 333 U.S. at 597 (A final judgment “puts

an end to the cause of action which cannot again be

brought into litigation between the parties upon any

ground whatsoever.”) (Emphasis added); Felsen, 442 U.S.

at 132 (“Res judicata prevents litigation of all grounds for,

or defenses to, recovery that were previously available to

the parties, regardless of whether they were asserted or

determined in the prior proceeding.”) (Citing Chicot

County Drainage Dist. v. Baxter State Bank, 308 U.S. 371,

378 (1940)). (Emphasis added).

In accord with the foregoing long-standing jurispru-

dence of this Court, the Fifth Circuit has held that “[flor a

prior judgment to bar an action on the basis of res judi-

cata, the parties must be identical in both suits, the prior

judgment must have been rendered by a court of compe-

tent jurisdiction, there must have been a final judgment

on the merits and the same cause of action must be in-

volved in both cases.” Nilsen v. City of Moss Point, 701

11

F.2d 556, 559 (5th Cir. 1983). In this case, the only element

that is contested is whether Brennan I and the instant

action involve the “same cause of action.”

Brennan’s posits, in Sections A and C of its Petition,

that this Court has not resolved the issue of the appropri-

ate test to be applied by the federal courts in determining

what constitutes the “same cause of action” for purposes of

the application of the doctrine of res judicata, or claim

preclusion, and that this important question of federal law

should be settled by this Court. In fact, however, this

Court has clearly indicated that the “transactional” test,

as set forth in § 24 of the second Restatement, is the

appropriate test. That section states:

(1) When a valid and final judgment rendered

in an action extinguishes the plaintiff’s claim

pursuant to the rules of merger or bar ... the

claim extinguished includes all rights of the

plaintiff to remedies against the defendant with

respect to all or any part of the transaction, or

series of connected transactions, out of which the

action arose.

(2) What factual grouping constitutes a ‘transac-

tion’, and what groupings constitute a ‘series’, are

to be determined pragmatically, giving weight to

such considerations as whether the facts are

related in time, space, origin, or motivation,

whether they form a convenient trial unit, and

whether their treatment as a unit conforms to

the parties’ expectations or business understand-

ing or usage.

The first Restatement, which was published in 1942,

recognized the “same evidence” test advocated by Bren-

nan’s in its Petition as one test that could be utilized to

12

assess whether the causes of action in successive law suits

between parties and their privies were the same.* Accord-

ing to the Comments to § 24 of the second Restatement,

however, as time passed and certain concepts of law and

procedure — e.g., the concept of a “claim,” rules regarding

joinder and ancillary and pendent jurisdiction — developed

and evolved, that test proved too rigid and narrow. As a

result, the second Restatement, which was promulgated in

1982, abandoned the “same evidence” test, in favor of the

more pragmatic “transactional” test set forth in § 24,

quoted above.”

* Another traditionally accepted test for determining identity of

claims, the “same right, same wrong” test, was described in § 63 of the

first Restatement. Under that test, the inquiry is whether there is but a

single wrongful invasion of a single primary right of the plaintiff,

though the theories of recovery might differ. See Baltimore Steamship

Company, supra.

* The same is true of the “same right, same wrong” test. Comment

(a) to § 24 in the second Restatement explained that:

{I)n the days when civil procedure still bore the imprint of

the forms of action and the division between law and equity,

the courts were prone to associate claim with a single theory

of recovery, so that, with respect to one transaction, a plain-

tiff might have as many claims as tliere were theories of the

substantive law upon which he could seek relief... In those

earlier days there was also some adherence to a view that

associated claim with the assertion of a single primary right

as accorded by the substantive law, so that, if it appeared

that the defendant had invaded a number of primary rights

conceiv: d to be held by the plaintiff, the plaintiff had the

same number of claims, even though they all sprang from a

unitary occurrence ... Still another view of claim looked to

sameness of evidence; a second action was precluded where

the evidence to support it was the same as that needed to

support the first... .

The present trend is to see claim in factual terms and to

make it coterminous with the transaction regardless of the

(Continued on following page)

13

This Court first recognized the “transactional” test

shortly after thegsecond Restatement superceded the first.

In Kremer v. Chemical Construction Corp., 456 U.S. 461,

481 n. 22 (1982), this Court stated that “[rles judicata has

recently been taken to bar claims arising from the same

transaction even if brought under different statutes. . . .”

(Emphasis added). In connection with that statement, the

Court made specific reference to the draft revisions to the

first Restatement, which promoted the adoption of the

“transactional” test, but which were pending publication

at the time. Id.

In Section C of its Petition, Brennan’s relies upon

Nevada v. United States, et al., 463 U.S. 110 (1983), in

support of its argument that this Court has not indicated

that the “transactional” test is the appropriate test to be

applied in this context. According to Brennan’s, this Court

discussed both the “transactional” *est and the “same

evidence” test, in Nevada v. U.S., but refused to opt for one

over the other. See Petition, p. 8. Respondents submit that

Brennan’s has misinterpreted the Court’s pronouncement

in that case.

As stated above, prior to 1982, the first Restatement

provided that, for purposes of res judicata, causes of action

would be deemed to be the same “if the evidence needed to

sustain the second action would have sustained the first

number of substantive theories, or variant foiins of relief

flowing from those theories, that may be ava*iable to the

plaintiff; regardless of the number of primary rights that

may have been invaded; and regardless of the variations in

the evidence needed to support the theories or rights. The

transaction is the basis of the litigative unit or entity which

may not be split.

14

action.” The suit at issue in Nevada v. U.S. was filed in

1973, before the second Restatement came into being. The

second Restatement abandoned the “same evidence” test,

in favor of the “transactional” test quoted above, finding

the latter to be “more pragmatic” as stated in the Com-

ments to § 24.

The United States, on behalf of the Pyramid Lake

Indian Reservation (the “Tribe”), plaintiff in the 1973

action, recognized that the “same evidence” test for deter-

mining whether the prior suit involved the same cause of

action for purposes of res judicata was no longer applicable

under the second Restatement, but argued that the Court

should, nevertheless, apply the old test to determine

whether the causes of action were the same, because that

test was in effect at the time the 1973 action was filed. See

Nevada, 463 U.S. at 131, n.12. Thus, the Tribe was

arguing that the “transactional” test should not be applied

retroactively.

Although, as Brennan’s correctly states, the Court did

find that the result in the case would be the same under

either test, it also recognized that the “same evidence” test

had never, even prior to the publication of the second

Restatement in 1982, been the only test by which to assess

the issue of “same cause of action” for purposes of res

judicata. Id., citing The Haytian Republic, 154 U.S. 118,

125 (1894); Baltimore Steamship Co., 274 U.S. at 321.

More importantly, however, the Court did not suggest that

the “same evidence” test — which the American Law Insti-

tute abandoned and superceded as a stand-alone test in the

second Restatement, advocating, instead, the “transactional”

test — has any continuing validity, in modern procedural

terms, as a device, in and of itself, by which to compare

successive claims for purposes of res judicata. Nor has the

15

Court given any such indication since its decision in

Nevada v. U.S.; instead, this Court has acknowledged — at

least implicitly - in both Kremer and Nevada v. U.S., that

the pragmatic approach established in the second Re-

statement is best suited to the task of determining whether

two cases involve the “same cause of action” for purposes

of claim preclusion under the doctrine of res judicata.

In line with the second Restatement and the jurispru-

dence of this Court, the Fifth Circuit has also adopted the

“transactional” test. See Nilsen v. City of Moss Point, 701

F.2d 556, 560 n. 4 (5th Cir. 1983) (en banc), cert. denied,

423 U.S. 908, rehg. denied, 423 U.S. 1026 (1985). As will

be demonstrated below, and contrary to Brennan’s asser-

tions, so has every other federal circuit court. Because the

“transactional” test, has been approved by this Court and

adopted by all of the federal circuit courts of appeals, there

exists no important issue of unsettled law that should be

determined by this Court. Accordingly, the exercise of this

Court’s supervisory jurisdiction is not warranted under

Rule 10(c) of the Rules of this Court.

B. There Is No Split Of Authority Between The

Fifth And Second Circuits Warranting The Ex-

ercise Of This Court’s Supervisory Jurisdic-

tion.

At Section B of the Petition, Brennan’s appears to

argue that there is a split in the circuits, particularly, the

Fifth and the Second, that needs to be resolved by this

Court. According to Brennan’s, the Second Circuit, em-

ploys a “same evidence” test, as opposed to a “transac-

tional” test, to determine whether the cause of action

involved in a second federal suit between the same parties

(or those in privity with them) is the same as that in a

16

prior suit wherein a final, federal judgment was rendered,

thereby putting it at odds with the Fifth Circuit.’

Brennan’s admits, however, at page 8 of the Petition,

again, citing 82 A.L.R. Fed. 829, that a majority of the

circuit courts of appeals — at least seven of them, according

to Brennan’s — have adopted the “transactional” test,

thereby implying, without ever specifically so stating, that

the remaining circuit courts of appeal have adopted the

“same evidence” test that Brennan’s advocates in the

Petition. In fact, however, Note 8 to the A.L.R. article cited

by Brennan’s identifies twelve circuit courts of appeals —

the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth, Tenth, Eleventh, District of Columbia, and Federal

Circuits — that have adopted the second Restatement’s

“transactional” test. 82 A.L.R. 829, § 2, n. 8. Although not

included in the annotations to the A.L.R. article, the Third

Circuit has also expressly adopted the “transactional

test.” Thus, all of the federal circuit courts of appeals

” At page 7 of the Petition, Brennan’s refers, in passing, to a test

allegedly employed by the Ninth Circuit that analyzes the “essential” or

“operative” facts and issues in the first and second suits to determine

whether they involve the same cause of action. Brennan’s admits,

however, that the “essential” or “operative” facts analysis is “closely

related” to the “transactional” test utilized by the Fifth Circuit, thereby

implying that the two approaches would yield the same result. In fact,

that is the case, since the “transactional” test employed by the Fifth

Circuit examines the operative facts in order to determine sameness. It

is interesting to note, however, that the article at 82 A.L.R. Fed. 829, on

which Brennan's heavily relies, categorizes the Ninth Circuit as having

adopted the “transactional” test set forth in the second Restatement. See

82A.L.R. Fed. 829, § 2, n. 8.

* The Third Circuit adopted the “transactional” test in United

States v. Athalone Industries, Inc., 746 F.2d 977, 984 (3rd Cir. 1984)

(“We are thus in keeping with ‘the present trend ... in the direction of

requiring that a plaintiff present in one suit all the claims for relief that

(Continued on following page)

17

have adopted the “transactional” test, although, each court

may consider one or more criteria in order to gauge

whether two causes of action, in fact, arise out of the same

transaction. Comment (b) to § 24 of the second Restate-

ment approves of such an approach:

Transaction; application of a pragmatic stan-

dard. The expression ‘transaction or series of

connected transactions,’ is not capable of mathe-

matically precise definition; it invokes a pragmatic

standard to be applied with attention to the facts

of the cases... .

It should be emphasized that the concept of

transaction is here used in the broad sense it has

come to acquire in the interpretation of statutes

and rules governing pleading and other aspects

of civil procedure. .. .

In general, the expression connotes a natural

grouping or common nucleus of operative facts.

Among the factors relevant to a determination

whether the facts are so woven together as to

constitute a single claim are their relatedness in

time, space, origin, or motivation, and whether

taken together, they form a convenient unit for

trial purposes. Though no single factor is deter-

minative, the relevance of trial convenience

makes it appropriate to ask how far the wit-

nesses or proofs in the second action would tend

to overlap the witnesses or proofs relevant to the

first. If there is a substantial overlap, the second

action should ordinarily be held precluded. But

the opposite does not hold true; even when there is

he may have arising out of the same transaction or occurrence.’”)

(Citation omitted).

18

not a substantial overlap, the second action may

be precluded if it stems from the same transaction

or series. ‘

(Emphasis added).

Although Brennan’s suggests otherwise to this Court,

in reality, as seen above, the “same evidence” test, as such,

does not exist in the second Restatement, nor does the

Second Circuit any longer apply the old “same evidence”

test, as such. Both cases cited by Brennan’s for the

contrary proposition, Tucker v. Arthur Anderson & Co.,

646 F.2d 721 (2nd Cir. 1981) and Ruskay v. Jensen, 342

F. Supp. 264 (S.D.N.Y. 1972), aff’d., 552 F.2d 392 (2nd

Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d

197 (1977), pre-date the second Restatement. The current

“transactional” approach advocated by the second Re-

statement, and adopted by the all of the circuit courts of

appeals, including the Second Circuit, allows for a consid-

eration of evidentiary issues, but not in a vacuum, rather,

in the context of the factual predicate, as a whole, in order

to determine whether the claims asserted in the two

actions arise out of the same transaction.

In Woods v. Dunlop Tire Corporation, 972 F.2d 36, 38

(2nd Cir. 1992), the Second Circuit stated that “[w]hether

or not the first judgment will have preclusive effect de-

pends in part on whether the same transaction or con-

nected series of transactions is at issue, whether the same

evidence is needed to support both claims and whether the

facts essential to the second were present in the first.”

(Citation omitted). In Pike v. Freeman, 266 F.3d 78 (2nd

Cir. 2001), the Second Circuit reiterated that “[w]hether a

claim that was not raised in the previous action could have

been raised therein ‘depends in part on whether the same

19

transaction or connected series of transactions is at issue

and whether the same evidence is needed t» support both

claims.’” (Citation omitted). The Court went on to explain

its application of the test, as follows:

To ascertain whether two actions spring from the

same ‘transaction’ or ‘claim,’ we look to whether

the underlying facts are ‘related in time, space,

origin, or motivation, whether they form a con-

venient trial unit, and whether their treatment

as a unit conforms to the parties expectations or

business understanding or usage.’... As this

‘same transaction’ test indicates, the ‘could have

been’ language of the third requirement is some-

thing of a misnomer. The question is not whether

the applicable procedural rules permitted asser-

tion of the claim in the first proceeding; rather,

the question is whether the claim was suffi-

ciently related to the claims that were asserted

in the first proceeding that it should have been

asserted in that proceeding. ...

Id. (Citations omitted; emphasis in original). See also

Woods v. Potter, 63 Fed. Appx. 590, 591 (2nd Cir. 2003) (A

“transactional analysis [is to be applied in determining]

whether a claim is precluded from adjudication by a

previous decision.”) (Citation omitted).

As stated above, the Fifth Circuit adopted the trans-

actional test enunciated in § 24 of the second Restatement,

including Comment (b) thereto, in Nilsen, supra. 701 F.2d

at 560 n. 4. The Fifth Circuit’s analysis, under the “trans-

actional” test focuses mainly on whether the two actions

are based on the same nucleus of operative facts. Agrilec-

tric Power Partners, Ltd. v. General Electric Co., 20 F.3d

663, 665 (5th Cir. 1994); In Re Southmark Corp., 163 F.3d

20

925, 934 (5th Cir. 1999). Under the Fifth Circuit’s ap-

proach, “substance, not technicalities, governs the applica-

tion of [the] test.” Robinson v. National Cash Register Co.,

808 F.2d 1119, 1125 (5th Cir. 1987). (Citation omitted).

(rev'd. on other grounds, Tnomas v. Capital Services, 836

F.2d 866 (5th Cir. 1988)).

In its Petition, Brennan’s has pointed this Court to no

case which establishes an inconsistency between the

Second and Fifth Circuits in their application of the

“transactional test,” and it is submitted that there is none

— particularly, none that would have altered the result in

this case. As demonstrated by its holdings in Woods and

Pike, supra, the Second Circuit’s substantive approach

comports with that of the Fifth Circuit. There is no split

between those circuits and no reason for this Court to

exercise its supervisory jurisdiction under Rule 10(a) of

the Rules of this Court.

C. The Fifth Circuit Properly Applied The “Trans-

actional” Test In This Case.

At no point in the courts below did Brennan’s suggest

that, for purposes of claim preclusion under the doctrine of

res judicata, the “same evidence” test is the appropriate

test by which to determine whether the cause of action

that it asserts in this case is the same as that asserted in

Brennan I. Instead, it accepted that the “transactional”

test is the proper test, but merely argued that under the

“transactional” test, as it is routinely applied by the Fifth

Circuit, the two causes of action were not the same.

Brennan’s now argues before this Court that the Fifth

Circuit misapplied the “transactional” test by, according to

21

Brennan’s, failing to distinguish between the exercise of a

contractual right and a cause of action. Petition, pp. 9-11.

As the Fifth Circuit held, however, this is a distinction

without a difference. See Fifth Circuit’s opinion in Bren-

nan II, App. to Petition, p. 2.

Unless a contractual right is self-operative, all that it

does is to give rise to a cause of action for the judicial

enforcement of the right. The only way that Article 2024

termination can be self-operative is if the party against

whom termination is sought acquiesces in the termination.

Not only has Dickie not acquiesced in the attempted

termination, he has disputed that the 1998 Agreement is

even subject to Article 2024. In order to terminate the

1998 Agreement, therefore, Brennan’s has asserted a

cause of action to judicially enforce its alleged contractual

right under Article 2024. A “cause of action” for purposes of

claim preclusion is clearly at issue. The Fifth Circuit was

correct on that point.

The Fifth Circuit also correctly determined that the

1998 Agreement is the “transaction” that is at the root of

both Brennan I and Brennan II. See id., at App. to Peti-

tion, pp. 1-2. Under the “transactional” test established in

§ 24 of the second Restatement, “a contract is generally

considered to be a single transaction for purposes of claim

preclusion.” 18 James W. Moore, Moore’s Federal Practice

§ 131.23, at 131-61 (3rd ed. 2004).

Brennan’s objective in Brennan I was to secure termi-

nation of the 1998 Agreement by any means, any grounds,

and under any theory, possible. It failed to achieve its goal

in Brennan I, and, obviously, retained new counsel to find

another way to skin the proverbial cat. Acting with the

22

benefit of fresh eyes cast on an old problem, Brennan’s

new counsel now has raised the instant alternative ground

for termination of the 1998 Agreement, one that was

obviously overlooked by Brennan’s original counsel.

Here, there is but one contract and one right to seek

termination, although there may exist more than one

ground upon which to seek termination. In Brennan I,

Brennan’s sought termination on two separate grounds. If

it had yet a third basis for seeking termination available

to it at that time, it could have, and should have, asserted

that cause of action in Brennan I, as the Fifth Circuit so

held. Fifth Circuit’s opinion in Brenian II, App. to Peti-

tion, p. 2.

Brennan’s argues, however, that, at the time of Bren-

nan I, it had “no reason or even ability to assert an Article

2024 cause of action for termination in the 2000 Lawsuit

[which was not tried until October, 2002].” Petition, p. 10.

What Brennan’s fails to state, however, is that the only

impediment to asserting its cause of action, under Article

2024 was that Brennan’s either chose not to send a termi-

nation letter prior to the trial in Brennan I, or as is mere

likely, that its former counsel in Brennan I simply failed to

think of the alternative termination grounds available at

the time. Brennan’s could easily have sent a termination

letter prior to, or during the pendency of, Brennan I and

could have obtained leave, under F.R.C.P. 15, to amend its

Complaint to have included that additional, alternative

ground for termination.

Brennan’s arguments that any attempt to assert an

Article 2024 cause of action in Brennan I would have been

23

premature, that the Fifth Circuit’s holding implicates

future contractual rights and obligations, and that it had

“no reason or ability to assert an Article 2024 cause of

action” in Brennan I are disingenuous. Pe‘ition, pp. 10, 11.

Brennan’s has represented to this Court that the right to

terrainate granted under Article 2024 is “inherent” in

every Louisiana contract of indefinite duration. Id., p. 11.

Thus, the right to terminate under Articie 2024, if it exists

at all, existed, and was fully ripe, at the time of Brennan I,

as a matter of state law. Nothing has occurred since that

time to cause any such right to subsequently spring into

existence, and no future contractual nghts or obligations

are iinplicated here. No impediment, legal or otherwise,

prevented Brennan’s from asserting a cause of action for

termination under Article 2024 in Brennan I.

It now appears obvious, from the allegations asserted

by Brennan’s in the Malpractice Action, that the only

reason that Brennan’s did not pursue a termination cavse

of action under Article 2024 in the prior proceeding is

because its former attorneys, allegedly, failed to advise

Brennan’s of the existence of the cause of action under

Article 2024. See Malpractice Suit, Supp., App. pp. 10-11,

pars. 28(f)-(h).’ Brennan I was extremely hard-fought, with

* In conducting its de novo review of the granting of a motion to

dismiss on grounds of res judicata, this Court is entitled to take judicial

notice of the filing of the Malpractice Suit, pursuant to Rule 201(b\(2) of

the Federal Rules of Evidence. The facts of Brennan’s filing of the

Malpractice Suit and the allegations contained therein cannot reasona-

bly be disputed by Brennan’s and are capzvle of accurate and ready

determination ty resort to the copy of the petition appearing at 1 of the

Supplemental Apyendix. “A court may . . . take judicial notice of its own

records or of these of inferior courts.” ITT Ravz2ier Inc. v. U.S., 651 F.2d

343, 345, n.Z (5th Cir. 1981). (Emphasis added.) See also Kinnett

Dairies, Inc. v. J.C. Farrow, 580 F.2d 1260, 1277, n. 3 (5th Cir. 1978).

(Continued on following page)

24

substantial discovery, extensive pre-trial motions and a

two week jury trial. Under the circumstances, it is simply

inconceivable that, had Brennan’s realized that it had the

Article 2024 arrow in its quiver, it would not have fired

that shot in Brennan I.

Comment(d) to Restatement § 25 addresses this very

situation, as follows:"

Successive actions changing the theory or ground.

Having been defeated on the merits in one ac-

tion, a plaintiff sometimes attempts another ac-

tion seeking the same or approximately the same

relief but adducing a different substantive law

premise or ground. This does not constitute the

presentation of a new claim when the new prem-

ise or ground is related to the same transaction

or series of transactions, and accordingly the sec-

ond action should be held barred.

Illustration 7 to § 25 elucidates this principle:

A brings an action against B for the cancellation

of a contract made with B, alleging that the con-

tract was procured by the undue influence and

fraud of B. After verdict and judgment for B, A

Under Rule 201(f) of the Federal Rules of Evidence, judicial notice “may

be taken at any stage of the proceeding.” Goode, Courtroom Handbook

on Federal Evidence, Comment (11), p. 216 (2005).

* Section 25 of the second Restatement states:

The rule of § 24 applies to extinguish a claim by the plaintiff

against the defendant even though the plaintiff is prepared

in the second action

(1) To present evidence or grounds or theories of the case

not presented in the first action, or

(2) To seek remedies or forms of relief not demanded in the

first action.

25

brings a new action for cancellation of the con-

tract, alleging mental incompetency of A. The

prior judgment is a bar.

Applying the factual pattern of the Illustration to the

situation at hand demonstrates that this case is on all fours

with the Illustration. In Brennan’s I, Brennan’s brought an

action against Dickie seeking recision of the 1998 Agreement

based on fraud, or, alternatively, a termination of it based on

breach. Judgment was entered in Dickie’s favor on the claims

for termination. Brennan’s then brought a new action for

termination of the contract based on the allegation that the

contract has no term and is, therefore, terminable at will,

under Article 2024. If the 1998 Agreement has no term,

which is denied, it had no term at the time it was executed

and at all times thereafter, including (i) at the time Bren-

nan I was filed in 2000, and (ii) at the time Brennan I went

to trial in late October 2002. Under the “transactional” test,

“a mere change in legal theory does not create a new cause of

action.” 18 Charles A. Wright, Arthur R. Miller, and Edward

H. Cooper, Federal Practice and Procedure § 4407 (2002), at

179. “[A] claim is coterminous with a transaction or series

of transactions, regardless of the number of different legal

theories that may arise as a result of plaintiffs alleged

damages ... The fact that plaintiff’s counsel in the

first action didn’t happen to think of the theory

advanced in the second action will also fail to avoid

preclusion.” 18 Moore’s Federal Practice § 131.21(3)[{a], at

131-43-33. (Emphasis added).

Thus, Brennan’s was required to assert its Article 2024

cause of action to enforce its alleged right to terminate the

1998 Agreement in Brennan I. As the Fifth Circuit correctly

26

held, “[hjaving failed to raise [that] argument in the original

suit ... [Brennan’s] is unable to file a new suit for purposes

of rehashing old battles.” Fifth Circuit’s opinion in Bren-

nan II, App. to Petition, p. 2. (Emphasis added). The Fifth

Circuit applied the transactional test in the manner contem-

plated in the Restatement and its resulting decision should

not be disturbed.

D. Brennan’s Has Not Demonstrated That The

Result Would Have Been Different Under The

“Same Evidence” Test.

Brennan’s argues in Section D of the Petition that

because the application of the “same evidence” test would

purportedly have yielded a different result under the facts of

this case, that test is the one that should have been applied

by the Fifth Circuit, a matter not raised in Question 1 of the

“Questions Presented” in Brennan’s Petition. Petition, pp. i

and 9. Obviously, as demonstrated above, under the second

Restatement, the jurisprudence of this Court and the juris-

prudence of every circuit court in this country, the “transac-

tional” test is the proper test to apply in this situation.

Even if, however, by some reversal, it should be deter-

mined that the “same evidence” test applies, as a stand-alone

method by which to compare claims for sameness, Respon-

dents do not believe that the application of that test would

have resulted in a different outcome under the facts of this

case. As stated in Comment (b) to § 24 of the second Re-

statement, even the fact that there may not be a “substantial

overlap” in the evidence needed to support the claims in the

first and second cases does not necessarily mean that the

27

second claim is not precluded under res judicata. Even the

Second Circuit, which Brennan’s claims applies the “same

evidence” test recognizes as much. However, in this case,

there is a total overlap of the “same evidence.”

In Ruskay, supra, the plaintiffs sought to defeat a

motion for summary judgment based on res judicata grounds

on the basis that the evidence required to prove the claim in

the first suit was different. than that which would support

the claim in the second suit. The court rejected the plaintiffs’

argument, observing that “[t]he ‘same evidence’ test may be

useful as a positive test for determining the identity of

claims, but it is not valid as a negative test.” 342 F.Supp.

at 270-71. (Citation omitted; emphasis added). The Court

went on to state that “[i]t will often be true that a decision on

one theory of recovery will have no bearing on the determi-

nation of another. This does not mean that each theory

states a distinct cause of action.” Id. at 271. (Citation

omitted; emphasis added). See also Engelhardt v. Bell &

Howell Co., 327 F.2d 30, 34 (8th Cir. 1964) (“In short, ‘the

same evidence test,’ if applied with complete literalness, is

valid as a positive but not as a negative test for determining

the identify of causes.”) (Citation omitted).

In this case, however, the only evidence needed to

determine the validity of Brennan’s Article 2024 argument is

the 1998 Agreement. That agreement was squarely at issue,

and was introduced into evidence, in Brennan I. The fact

that other additional evidence may have been required to

prove Brennan’s entitlement to termination of the 1998

Agreement under its other theories of recovery does not

weigh in favor of a finding that the causes of action in

Brennan I and Brennan II are not the same for purposes of

28

res judicata. There was a single contract at issue here and if

Brennan’s had prevailed on any theory asserted for its

dissolution, there would have been but a single termination.

Thus, under any test, the causes of action in Brennan I and

Brennan II are the same for purposes of claim preclusion

under the doctrine of res judicata.

,’

v

CONCLUSION

Under the Restatement, the jurisprudence of this

Court, and the jurisprudence of every circuit court of

appeal in the country, the appropriate test to determine

sameness of causes of action for purposes of res judicata is

the Restatement’s “transactional” test, not the “same

evidence” test, as advocated by Brennan’s in its Petition.

The Fifth Circuit Court of Appeals properly applied that

test to the operative facts underlying Brennan II and

correctly concluded that, Brennan II involves the same

cause of action as Brennan I, for purposes of res judicata.

Brennan II does nothing more than advance an alternative

ground or theory of recovery for termination of the 1998

Agreement, one that was available at the time Brennan I

was litigated. That theory could have, and should have,

been raised in Brennan I, as the district court and the

Fifth Circuit have both concluded.

That being the case, Brennan’s is barred by res judi-

cata from raising it now. The result would be no different

under the “same evidence” test advocated by Brennan’s.

The Fifth Circuit’s decision was correct in all respects and

this Court should now act to finally put an end to this

repetitive, and seemingly unending, litigation by denying

Brennan’s Petition for Certiorari.

29

Accordingly for the reasons fully stated herein, Respon-

dents, Richard J. Brennan, Jr., Dickie Brennan & Company,

Inc., Cousins Restaurants, Inc. and Seven Sixteen Iberville,

L.L.C. request that this Court deny the Petition for Writ of

Certiorari filed hy Petitioner, Brennan’s, Inc.

Respectfully submitted,

GARY J. ELKINS

YVONNE CHALKER

Counsel of Record

ELKINS, P.L.C.

210 St. Charles Avenue

Suite 4400

New Orleans, LA 70170-4400

Telephone: (504) 529-3600

Facsimile: (504) 599-8106

Attorneys for Respondents,

Richard J. Brennan, Jr.,

Dickie Brennan & Company, Inc.,

Cousins Restaurants, Inc. and

Seven Sixteen Iberville, L.L.C.

App. 1

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

No. 2005-8471

DIVISION

BRENNAN’S INC.

VERSUS

EDWARD TUCK COLBERT, KENYON & KENYON,

LEON H. RITTENBERG, JR., AND BALDWIN HASPEL,

L.L.C., f/n/a BALDWIN & HASPEL, L.L.C.

FILED:

DEPUTY CLERK

PETITION FOR DAMAGES AND

DECLARATORY JUDGMENT

(Filed Jun. 23, 2005)

The petition of Brennan’s Inc., a Louisiana corpora-

tion in good standing with its domicile located in the

Parish of Orleans, respectfully represents:

1.

The defendants in this lawsuit are:

a. Edward Tuck Colbert (hereinafter “Col-

bert”), on information and belief; a resident

and domiciliary of Washington, D.C.;

b. Kenyon & Kenyon, a partnership with its

principal office in New York, New York;

ce. Leon H. Rittenberg, Jr. (hereinafter “Ritten-

berg”), a resident and domiciliary of the Par-

ish of Jefferson, State of Louisiana; and

App. 2

d. Baldwin Haspel, L.L.C. f/n/a Baldwin &

Haspel, L.L.C. (hereinafter “Baldwin Haspel”),

a Louisiana limited liability company with

its domicile and registered office located in

the Parish of Orleans.

2.

At all times material and pertinent, Colbert was a

partner in Kenyon & Kenyon and was engaged in the

practice of law in Washington, D.C., and has provided

legal services in the State of Louisiana.

3.

At no time has Colbert been duly admitted to practice

law in the State of Louisiana and therefore the provisions

of La. R.S. 9:5605 are inapplicable to him.

4.

The law firm of Kenyon & Kenyon holds itself out as

one of the largest and most diversified law firms in this

country concentrating on the practice of intellectual

property. It represents that it is equipped with the most

preeminent intellectual property litigation group in this

country and that it has some of the nation’s best litigators

who possess very deep and first-chair trial experience.

Kenyon & Kenyon also represents that it strives to provide

the best client representation through its experience,

technological expertise, anticipation of client needs, clear

and open communication, and an understanding of the

vital role played by a comprehensive intellectual property

protection and enforcement strategy.

App. 3

5.

At all times material and pertinent, Rittenberg was a

shareholder/member of Baldwin Haspel and was engaged

in the practice of law at Baldwin Haspel’s office located in

the Energy Centre in New Orleans, Louisiana.

6.

The law firm of Baldwin Haspel holds itself out as

providing its clients the highest quality legal services in a

cost-effective manner in every area of the firm’s practice as

promptly as possible, utilizing available modern techno-

logical advances while maintaining traditional personal

attention to its client’s needs. In line with this commit-

ment, the firm represents that it has continually expanded

its capabilities to cover all areas of law affecting its clients.

if

Brennan’s Inc. owns and operates Brennan’s Restau-

rant which is located in the French Quarter in New

Orleans.

8.

Brennan’s Inc. has used the service mark BREN-

NAN’S in connection with restaurant services continually

since at least as early as 1951, and it has been granted

federal trademark registrations recognizing its exclusive

right to use the mark for such services under both federal

and Louisiana law.

App. 4

9.

Brennan’s Inc. is currently owned by Owen E. Bren-

nan, Jr., James C. Brennan, and Theodore M. Brennan

(“the brothers”) who are the sons of the late Owen E.

Brennan, Sr., the founder of Brennan’s Restaurant.

10.

During the latter part of the 1970's, litigation ensued

between various members of the Brenman’s family includ-

ing the brothers, their mother, and several of the brothers’

aunts and uncles (including Richard Brennan, Sr.) over

the use of the federally registered tradern:ark, BREN-

NAN’S.

11.

That litigation came to a close in 1979 with a settle-

ment agreement and consent judgment which defined the

various family members’ rights in the BRENNAN’S

trademark. Among other things, the agreement (hereafter

“1979 Agreement”) gave the bre .ers and their mother

through Brennan’s Inc. exclusive rights to the BREN-

NAN’S trademark in Louisiana and all other states except

Texas and Georgia where Richard Brennan, Sr. and his

siblings held exclusive rights. The agreement also pro-

vided that no party would open or operate a new restau-

rant in Louisiana using the Brennan name but permitted

the parties to “aid” their descendants’ efforts to owr or

operate restaurants “under any name.” And with respect

to future disputes that might arise, the agreement stated

that neither side would assert its trademark rights

against the other for uses permitted by the agreement, but

App. 5

it also said that it did not bar future claims that might

arise out of a breach of the agreement.

12.

In the late 1990’s, Richard Brennan, Sr. gave his son,

Richard Brennan, Jr. (“Dickie Brennan”) and another child

a majority interest in the Palace Café restaurant which

began to be known as Dickie Brennan’s Palace Café.

Around that same time. Richard Brennan, Sr.. Dickie

Brennan, and others decided to open a new restaurant in

New Orleans called Dickie Brennan’s Steakhouse.

13.

In 1998, the brothers became aware of the construc-

tion of Dickie Brennan’s Steakhouse three blocks away

from Brennan’s Restaurant.

14.

At that time, Colbert and his lew firm, Kenyon &

Kenyon, and Rittenberg and his law firm, Baldwin Haspel,

were engaged to represent Brennan’s Inc. and they pro-

vided advice to Brennan’s Inc. as regarded the preparation

of a license agreement which would authorize Dickie

Brennan’s limited use of the Brennan’s name.

15.

Colbert and Rittenberg advised the brothers to meet

with Dickie Brennan to discuss how to manage the use of

the family name in connection with their respective

restaurants.

App. 6

16.

Following the brothers’ meeting with Dickie Brennan

and pursuant to their engagement, Colbert and Rittenberg

and other members of their law firms prepared what was

represented to be a license agreement and which was

subsequently executed by Brennan’s Inc. and Richard

Brennan, Jr. in November of 1998. A copy of this agree-

ment (hereafter “1998 Agreement”) is annexed as Exhibit

A.

yf

In 2000, Brennan’s Inc. and the brothers sued Dickie

Brennan. Richard Brennan. Sr., Dickie Brennan’s, Inc.,

Seven Sixteen Iberville, L.L.C. (the limited liability

company which owns and operates Dickie Brennan’s

Steakhouse) and Cousins Restaurants. Inc. (the corpora-

tion which owns and operates Dickie Brennan’s Palace

Café), because notwithstanding the 1998 Agreement, it

had experienced numerous instances of confusion on the

part of its customers concerning the relationship between

Dickie Brennan’s St>akhouse, Dickie Brennan’s Palace

Café, and Brennan’s Restaurant at 417 Royal Street.

18.

Defendants represented Brennan’s Inc. and the

brothers in the aforementioned lawsuit which-was filed in

the United States District Court for the Eastern District of

Louisiana and docketed as Case No. 00-2413.

App. 7

19.

The federal district court judge made several rulings

that narrowed the issues for trial of the lawsuit. Among

other things, the district court judge ruled (1) Richard

Brennan, Sr. had breached the 1979 Agreement by owning

a minority share of Cousins Restaurants, Inc. and Seven

Sixteen Iberville, L.L.C. and otherwise contributing to

those businesses; (2) the 1979 Agreement barred the

plaintiffs from bringing trademark-related claims againsi

Richard Brennan, Sr. and the plaintiffs were limited to

pursuing contract remedies against Richard Brennan, Sr.;

(3° the 1998 Agreement barred the plaintiffs from pursu-

ing trademark-related claims against Dickie Brennan and

the plaintiffs would be limited to remedies for breach of

contract unless they could show that the contract should

be rescinded because of fraud or a serious breach; and (4)

Cousins Restaurants, Inc. and Seven Sixteen Iberville,

L.L.C. could exercise the rights given to Dickie Brennan

under the 1998 Agreement and the plaintiffs could not

pursue trademark related claims against those companies.

20.

In November of 2002, after a two week trial a jury

returned a verdict finding that Dickie Brennan had not

fraudulently induced the plaintiffs to enter into the 1998

Agreement, that Dickie Brennan had breached the 1998

Agreement with respect to Dickie Brennan’s Steakhouse

but not Dickie Brennan’s Palace Café, that Dickie Bren-

nan acted in good faith and that his breach was not so

serious as to justify dissolving the 1998 Agreement. The

jury awarded Brennan’s Inc. $250,000 for Dickie Bren-

nan’s breach of the 1998 Agreement, and on December 13,

2002, the United States District Court judge entered a

App. 8

judgment on the jury verdict and ordered Dickie Brennan

to bring his conduct into compliance with the 1998 Agree-

ment.

21.

Defendants appealed the judgment of the United

States District Court judge to the United States Court of

Appeal for the Fifth Circuit on behalf of Brennan’s Inc.

and the brothers raising several issues but failing to

challenge the district court’s instructions to the jury

regarding termination of the 1998 Agreement (viz., the

court’s instructions that the jury had discretion to decide

whether to declare the contract at an end or instead to

require Dickie Brennan to specifically perform the con-

tract; and that the jury’s decision on this question could

consider the severity of Dickie Brennan’s breach, his good

or bad faith, and the relative fairness of the two methods

of dealing with the breach).

22.

On June 28, 2004, the United States Court of Appeals

for the Fifth Circuit rendered its decision affirming the

district court’s judgment in all respects except with respect

to the rulings that the 1998 Agreement bars Brennan’s

Inc. and the brothers from pursuing trademark-related

causes of action against Dickie Brennan. Cousins Restau-

rants, Inc. and Seven Sixteen Iberville, L.L.C. and that the

1979 Agreement bars Brennan’s Inc. and the brothers from

pursuing trademark-related causes of action against

Richard Brennan, Sr. However, the court outlined several

limitations or restrictions on Brennan’s Inc.’s rights to

pursue its trademark related claims.

App. 9

23.

In its decision, the United Slates Court of Appeals for

the Fifth Circuit noted specifically that the “1998 Agree-

ment is best described as a consent-to-use agreement

rather than a license” <d that its “conclusions concerning

the limitations on Dickie’s liability for trademark in-

fringement reflect both the peculiar nature of the 1998

Agreement and the fact that the agreement remains in

force.” It also noted that Brennan’s Inc. did not assert on

appeal the issues regarding termination of the contract.

24.

Shortly following the rendition of the judgment of the

United States Court of Appeals for the Fifth Circuit,

Brennan’s Inc. terminated the services of defendants and

engaged new counsel to represent it in matters pertaining

to the ongoing problems with Dickie Brennan and his

restaurants.

25.

The brothers first learned that the issues regarding

termination of the contract were not asserted on appeal by

defendants until after the United States Court of Appeal

for the Fifth Circuit rendered its decision on June 28,

2004.

26.

-On October 14, 2004, Brennan’s Inc. filed a lawsuit in

the United States District Court against Dickie Brennan

and three of the companies in which he has an interest

(viz., Cousins Restaurants, Inc., Seven Sixteen Iberville,

App. 10

L.L.C. and Dickie Brennan & Company seeking declara-

tory and injunctive relief decreeing that the 1998 Agree-

ment was terminated and no longer effective and enjoining

the defendants from violating its trademark rights.

27.

On April 11, 2005, the United States District Court

judge dismissed this new lawsuit on grounds of res judi-

cata finding in pertinent part that “(t]he time for Bren-

nan’s Inc. to litigate whether the 1998 Agreement was

terminable at will under Article 2024 was in the prior suit

in which it sought to terminate the agreement based on a

breach thereof.”

28.

Defendants were negligent and deviated below the

standard of care in drafting the 1998 Agreement and in

representing Brennan’s Inc. in the federal court lawsuit in

the following respects, not meant to be exclusive:

a. Failing to prepare a license agreement as

opposed to a consent-to-use agreement;

b. Failure to include royalty provisions in the

1998 Agreement;

ce. Failing to include a term in the 1998 Agree-

ment;

d. Failing to include in the 1998 Agreement

breach of contract provisions for the recov-

ery of attorney's fees, costs, and specified

damages;

App. 11

e. Impairing or diminishing the strength of the

trademark claims of Brennan’s Inc. in the

1998 Agreement;

f. Failing to assert on appeal the issues re-

garding termination of the contract;

g. Failing to assert the claim to terminate the

1998 Agreement pursuant to Louisiana Civil

Code Article 2024;

h. Failing to advise Brennan’s Inc. of the po-

tential res judicata or claim preclusive effect

of defendants’ failure to assert on appeal the

issues regarding termination of the contract

and failure to assert the claim to terminate

the 1998 Agreement pursuant to Louisiana

Civil Code Article 2024;

i. Any and all such other acis of negligence

which will be shown at the time of trial

hereof.

29.

As a direct and proximate consequence of the defen-

dants’ negligence and deviation below the standard of care

for lawyers practicing in this community, Brennan’s Inc.

has and will continue to sustain monetary damage, loss

and injury.

30.

Brennan’s Inc. has also paid defendants Colbert and

Rittenberg substantial sums of money for legal fees for the

preparation of the 1998 Agreement and representation in

the federal court lawsuit which defendants should he

ordered to disgorge and return to plaintiff inasmuch as

App. 12

there was a failure of consideration for such services and

such services were provided in a negligent fashion.

31.

Furthermore, defendants Colbert and Kenyon &

Kenyon seek approximately $2,000,000 of additional legal

fees and costs from Brennan’s Inc. for services rendered in

connection with the federal court litigation.

32.

For the reasons set forth above, Brennan’s Inc. is

entitled to a judgment of this Court declaring that Colbert

and Kenyon & Kenyon are not entitled to recover any

sums from it for additional legal fees and costs for services

rendered in connection with the preparation of the 1998

Agreement or the federal court litigation.

33.

Finally, in the event any of plaintiffs claims are found

to be perempted under the provisions of La. R.S. 9:5605,

plaintiff asserts the unconstitutionality of that statute

under Louisiana Constitution Article 1, Section 22 because

the statute deprives it of access to court.

34.

' Plaintiffs prays for trial by jury and submits that the

amount in controversy exceeds that amount required by

Louisiana law for trials by jury.

WHEREFORE, Brennan’s Inc. prays that each defen-

dant be duly served and cited to appear and answer this

App. 13

petition and that after the passage of all legal delays and

due proceedings are had that there be judgment in favor of

Brennan’s Inc. and against Edward Tuck Colbert, Kenyon

& Kenyon, Leon H. Rittenberg, Jr. and Baldwin Haspel,

L.L.C., f/n/a Baidwin & Haspel, L.L.C. ordering them to

pay Brennan’s Ine. joitly, severally and in solido such

sums as will reasonably compensate Brennan’s Inc. for its

damages together with interest from date of demand and

all costs of these proceedings. Brennan’s Inc. further prays

that this Court enter judgment declaring that Edward

Tuck Colbert and Kenyon & Kenyon are not entitled to

recover any sums from Brennan’s Inc. for additional

unpaid legal fees and costs for services rendered in con-

nection with the preparation of the 1998 Agreement or the

federal court litigation. Plaintiff further prays for a trial

by jury.

Respectfully submitted,

/s/ Robert Matthews

Robert H. Matthews, Bar #9055

830 Union St., 4th Flr.

New Orleans, LA 70112

(504) 523-4542

/s/ Pauline M. Warriner

Pauline M. Warriner, Bar #22673

830 Union St., 4th Flr.

New Orleans, LA 70112

(504) 523-4542

PLEASE SERVE:

Y Edward Tuck Colbert

Through the Long Arm Statute

Y Kenyon & Kenyon

Through the Long Arm Statute

App. 14

Y Leon H. Rittenberg, Jr.

(Personal Service Only)

1100 Poydras Street, Suite 2200

Energy Centre

New Orleans, LA 70163-2200

Y Baldwin Haspel, L.L.C.

Through its Agents for Service of Process:

Jerome J. Reso, Jr.

1100 Poydras Street, Suite 2200

Energy Centre

New Orleans, LA 70163-2200

Y State of Louisiana

Through the Attorney General:

Mr. Charles C. Foti, Jr.

Attorney General

1885 N. Third Street

Baton Rouge, LA 70802