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Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

When Two Do Not Become One: Appealability of Judgments in Consolidated Cases

In Hall v. Hall, the United States Supreme Court (SCOTUS) answered the burning question that … okay, that probably no one has been dying to have answered.  But nevertheless, it is good to know for appellate practice.  When you consolidate cases under Rule 42, can you separately appeal a judgment obtained in one case even if a final judgment has not been entered in the other consolidated case?  According to SCOTUS, yes.  Hall v. Hall,  584 U.S. ___, 138 S. Ct. 1118, 200 L.Ed.2d 399 (Mar. 27, 2018).


When you have two similar cases, you can move the court to consolidate them under Rule 42.  When cases are “consolidated,” they are heard by the same judge.  They may also be tried at the same trial.

Consolidation has been around since before Abraham Lincoln was a twinkle in his mother’s eye.  In 1813, Congress passed a statute allowing courts to consolidate related actions. § 3, 3 Stat. 21.  Under this statute, SCOTUS consistently refused to recognize “consolidated” cases as being “unified” for all purposes.

For example, in Rich v. Lambert, SCOTUS declined to exercise jurisdiction over several consolidated maritime appeals because each case did not individually involve at least $2,000 in damages, and (at that time) SCOTUS only had jurisdiction over maritime cases where the amount in issue was in excess of $2,000.  12 How. 347, 352-53, 13 L.Ed. 1017 (1852).

In Mutual Life Insurance Co. v. Hillmon, SCOTUS reversed a court order treating three separate lawsuits against three separate defendants as one merely because the three separate lawsuits against each defendant were consolidated.  145 U.S. 285, 293, 12 S. Ct. 909, 36 L.Ed. 706 (1892).  Poor Mrs. Hillmon had to file three separate lawsuits against three separate life insurance companies for release of three separate life insurance policies on her husband who she claimed had died while traveling through southern Kansas.  Id. at 285-87.  The insurance companies claimed it was insurance fraud, that Mr. Hillmon was still alive, that he had conspired with his traveling companion to murder their other traveling companion, and that they were trying to pass off that poor schmuck’s corpse as Mr. Hillmon.  Id.  The cases were consolidated.  At trial, when the individual insurance companies each tried to challenge potential jurors for jury duty disqualification, the court limited their challenges to the amount normally allowed in one case rather than allow them to have the amount allowed in three cases.  Id.  According to SCOTUS, the fact that the cases were consolidated did not negate the individual defendants’ rights to have the full amount of peremptory (i.e., juror) challenges available to them in their separate lawsuits.  Id.  at 293.

(I don’t know if Mr. Hillmon was actually alive at the time of trial, but he is definitely dead now.)

In Stone v. United States, SCOTUS did not allow the appealing party to raise issues on appeal that were related to a consolidated case whose judgment he had not also appealed.  167 U.S. 178, 189, 17 S. Ct. 778, 42 L.Ed. 127 (1897).

In Johnson v. Manhattan R. Co., SCOTUS affirmed Judge Learned Hand’s decision that consolidation does not automatically make the parties to one lawsuit also parties to the consolidated lawsuit.  289 U.S. 479, 496-497, 53 S. Ct. 721, 77 L.Ed. 1331 (1933).

In 1935, Rule 42(a) was adopted, and expressly allowed for consolidation of cases raising similar facts, issues and/or containing similar parties.

Following the adoption of Rule 42(a), SCOTUS continued to reject the theory that “consolidation” means “unification.”  In Butler v. Dexter, SCOTUS dismissed an appeal because the constitutional question that gave SCOTUS jurisdiction was not raised in the appealed case, but in the other consolidated cases which were not appealed.  425 U.S. 262, 266-67, 96 S. Ct. 1527, 47 L.Ed.2d 774 (1976).


One very important thing you should know about the above opinions is that SCOTUS never stated outright “Yes, you can separately appeal cases even if they have been consolidated under Rule 42.”  Apparently, you really have to spell these things out for lawyers.

Which brings us to the case of poor Samuel Hall (coincidentally, a lawyer).  Samuel does not like his sister Elsa, and the feeling is mutual.  Samuel used to take care of his mother, until she got mad at something Samuel did with her real estate.  Hall, 138 S. Ct. at 1122.  His mother then created a trust, transferred all of her property into it, made herself trustee, and made Elsa the beneficiary of the property upon her death.  Id. The mother also moved to live with Elsa and the move, according to SCOTUS was “under circumstances disputed by the parties.”  Id.

(I don’t know what that means, but it screams “kidnapped and transported in a container ship.”  The mom lived in the Virgin Islands with Samuel, and relocated to Miami with Elsa).

The mom eventually sued Samuel and his law firm on behalf of her trust for whatever it is that Samuel allegedly did to her real estate. Id.  The mom died, and Elsa became the trustee tasked with prosecuting the lawsuit against Samuel.  Id.  Samuel then filed a separate lawsuit against Elsa for whatever it is that she allegedly did to their mom.  Id. at 1123.  The cases were consolidated, and tried in one trial.  Id.

Elsa lost.  She lost the trust case, and Samuel won on his claims against her in the individual case.  Id.  Elsa was able to overturn the jury verdict in the trust case, reopening the litigation.   Id.  However, the jury verdict against Elsa in the individual case stood, and Elsa appealed that verdict.  Id.  Samuel argued that the verdict in the individual case was not a final appealable judgment because the claims in the trust case remained pending. Id.  The Third Circuit Court of Appeals agreed.  Id.  SCOTUS did not.

According to SCOTUS, “[h]ad the District Court never consolidated the trust and individual cases, there would be no question that Elsa could immediately appeal from the judgment in the trust case.”  Id.  Relying on its  history of viewing consolidated cases as retaining their separate identity, SCOTUS rejected Samuel’s argument and reversed the Third Circuit.  It finally stated, clear enough for lawyers to understand, “that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”  Id. at 1131.

And everybody lived happily ever after.  Except for the Halls, who are probably still suing each other, and also Mr. Hillmon, who is definitely now dead.