By E. King Poor
Partner, Quarles & Brady LLP
Going back to the early 1970s, federal courts have disagreed on a basic question of appellate procedure: If a case has been consolidated with others, does it remain independent when it comes to filing an appeal? The Supreme Court finally settled that question in Hall v. Hall, 2018 WL 1472897 (March 27, 2018) and did so with a unanimous and unequivocal “yes,” holding that a judgment in a consolidated case may be appealed immediately.
Important practical considerations flows from the Hall decision—namely, parties in consolidated cases cannot wait to appeal. The appeals clock begins when judgment is entered for any consolidated case, and not when all the consolidated cases have been finally decided.
Third Circuit Dismisses Appeal from a Consolidated Case
The Hall case arose from a family dispute over real estate in the U.S. Virgin Islands. A mother had a falling out with her lawyer son over property that he managed and she then transferred her property to a trust. The trust later sued her son and his law firm for mismanagement. After the mother died, her daughter became the successor trustee and continued the suit against her brother. The brother then sued his sister individually and the individual and trust cases were eventually consolidated.
A single jury heard both cases. It rendered a verdict in favor of the brother in his individual case and against the sister in her trust case. But the verdict for the individual case was set aside for a new trial, while final judgment was entered against the sister in the trust case.
The sister appealed the judgment against her. The Third Circuit dismissed the appeal for lack of jurisdiction reasoning that because the two cases had been consolidated “for all purposes,” the sister could not appeal when the individual case was still pending.
Looking Back Over 200 Years, the Supreme Court Reverses
The Supreme Court reversed. Writing for a unanimous Court, Chief Justice Roberts pointed out that if there had been no consolidation, there would be no question about the sister’s right to appeal. But in light of the consolidation, the Court turned first to the language of Fed. R. Civ. P. 42(a) which permits trial courts to take the following steps for actions involving common questions of law or fact (1) join them for hearing or trial, (2) “consolidate” them, or (3) issue any order to avoid “unnecessary cost or delay.”
The Court found that the word “consolidate” as used in Rule 42(a) was ambiguous. On the one hand, it noted that the term might mean “complete merger,” but on the other hand, it might mean simply a “joining together” without a case losing its “independent character.” Because the term “consolidate” did not have a plain meaning, the Court looked to the “legal lineage” of the term going back to the first federal consolidation statute in 1813.
Unlike other Supreme Court decisions that hinge on the text of a statute or rule alone, the Hall decision turned on history. In particular, the Court examined its own decisions, those of other federal courts, and leading treatises in the 125 years after the original 1813 statute and determined that there was a widely-shared consensus that consolidation meant only a joining together— with constituent cases remaining independent for appeal.
The linkage to that history continued. In 1938, when the current Rule 42(a) was adopted, it was expressly based on the 1813 statute. Because of that, the Court reasoned, unless the drafters of the rule indicated an intent to give it a new meaning, the historical meaning governed. The Court rejected the idea that the drafters would “take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do.”
Beyond its specific holding, Hall offers another lesson: history matters. To settle a decades-old division of authority in 2018, the Court looked to an 1813 statute and the legal authority that followed in its wake. That history, the Court concluded, resolved any ambiguity and therefore it held that consolidated cases retain their independent character for appeals.
Practice Pointer - In Consolidated Cases, Don’t Wait to Appeal
Before Hall, parties in some circuits may have considered waiting until all consolidated cases had been decided before appealing. No longer. With Hall, each consolidated case will have its own appeal clock once judgment is entered. And that’s the only clock that counts to preserve the right to appeal. In consolidated cases, when it comes to appeals, there’s no more waiting.