Consolidated Cases Treated Individually for Purposes of Appeal

Courts have the power to consolidate cases that raise common questions of fact or issues of law for many purposes, including to hold a single trial.

But consolidating cases, no matter the purpose, does not destroy the independent cases for appeal, according to a decision by the U.S. Supreme Court. Attorneys and judges dealing with consolidated cases will need to remain alert to the possibility that cases initially consolidated will diverge when it comes to entering judgment and taking an appeal. 

Family Feud Ends Up in Court

The consolidated cases began with a dispute between a brother and a sister over how the brother, an attorney, managed their mother’s property. The brother had acted as his mother’s caretaker and legal advisor for her real estate in the U.S. Virgin Islands. Eventually, however, mother and son had a falling out when she accused him of misusing rents from her property, leading the mother to put her real estate assets into a trust for the sole benefit of the sister.

The mother sued her son for his alleged mismanagement of her estate in a trust case. When the mother died while the lawsuit was pending, the sister inherited the trust and stepped into the case. The brother wanted to pursue counterclaims against the sister, alleging that she had turned their mother against him by taking advantage of her poor health and supposed mental deterioration. But because the sister was not an individual member of the trust case—she was only in the case as a representative of the trust her mother had set up—the brother had to file a separate lawsuit against the sister to assert his claims.

The second case, the individual case, was soon combined with the trust case under Federal Rule of Civil Procedure 42(a). The two cases were tried together, and the brother prevailed in both. But the judge granted a new trial in the individual case, which prevented the entry of a final judgment in that case. The sister appealed the judgment in the trust case, but the U.S. Court of Appeals for the Third Circuit ruled it could not hear the appeals of the trust case and the individual case separately. 

Heavy Reliance on History

The question before the U.S. Supreme Court was whether the trust case was immediately appealable after judgment was entered despite the fact that the consolidated case remained pending—a position many circuit courts had previously rejected. The Court framed the issue as mainly turning on the nature of “consolidating” cases. The Court first noted that dictionary definitions of “consolidate” were not helpful because the term is ambiguous, capable of being used to describe the combining of two things into one (e.g., the company consolidated the two branches) or combining two things while keeping their independent character (e.g., she consolidated her books; this does not mean the two books became one book).

The Court then turned to the history of the term, and its use in legal contexts, to find a solution. Relying on cases going back to Lord Mansfield, the Court explained that the term “consolidate” had been used for over 125 years to mean the joining together—but not a complete merger—of cases. For example, the Court had previously held that consolidated cases remained separate when determining the number of peremptory juror strikes, when determining jurisdiction over each case, and when entering the jury verdict and final judgment. 

Litigators Must Keep Track of Consolidated Cases

The Court rejected the approach advanced by the brother and a group of retired federal district court judges, among others, who would have allowed district courts more control in deciding when an individual case is appealable. The justices worried that delaying an appeal could harm litigants who could have to wait months or years for a final judgment. That policy concern should be addressed by the rules advisory committee, according to the Court, which is in a better place to address the practical issues raised by the opinion.

Instead, the Court embraced a bright-line rule that would entitle parties in a consolidated case to appeal as soon as they had a judgment. “Litigators concerned about avoiding piecemeal litigation and the possibility of error or ambiguity in conflicting decisions will want to take care to ensure that consolidated cases remain on the same appellate track,” explains Stephen D. Feldman, Raleigh, NC, cochair of the ABA Section of Litigation’s Appellate Practice Committee. “This was an important procedural question for the Court to resolve one way or another. The fact that the historical practice was so deeply rooted helps explain why the decision was unanimous,” says Feldman.

Jason P. Eckerly, Chicago, IL, cochair of the Roundtable Subcommittee of the Section of Litigation’s Trial Practice Committee agrees. “To the extent the Court’s ruling creates an issue, it should be something to which litigants can easily adapt by managing and tracking individual cases, even if they are consolidated for certain purposes, as individual cases. The key will be in not getting too tied up in other issues relating to the consolidated cases, at the expense of a single case. If a final judgment is entered as to one case while the others remain, be sure to file the notice of appeal for the case that has concluded,” suggests Eckerly.