Ringwald v. Harris

• Citation: 675 F.2d 768
• Decision Date: 14 May 1982
• Docket Number: No. 81-4352,81-4352
• Parties: Raymond F. RINGWALD, Sr., Plaintiff-Appellee, v. R. D. HARRIS, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 768

675 F.2d 768

Raymond F. RINGWALD, Sr., Plaintiff-Appellee, v. R. D. HARRIS, Defendant-Appellant.

No. 81-4352

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 14, 1982.

Walter B. Conway, Houston, Tex., for defendant-appellant.

Michael B. McDermott, Biloxi, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, SAM D. JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

In November 1980, plaintiff-appellee Ringwald filed suit on a promissory note in the Circuit Court of Harrison County, Mississippi, against R. D. Harris, defendant-appellant. Shortly thereafter, Ringwald filed suit in the Chancery Court of Harrison County against Harris and his wife to set aside certain conveyances made by Harris to his wife, alleging that the conveyances were without consideration and were made just following institution of the note suit for the purpose of hindering, delaying, and defrauding Harris' creditors, particularly Ringwald in his effort to collect on the note. Each suit was removed to the United States District Court for the Southern District of Mississippi on the basis of diversity of citizenship, as the Harrises were citizens of Texas and Ringwald was a citizen of Mississippi.

Following the removal, the district court entered an order, on its own motion, reciting that the two cases "should be consolidated for all purposes, including trial ..." and ordering that the fraudulent conveyance suit "should be and hereby is consolidated with" the suit on the note "for all purposes, including trial." ¹ Thereafter, Ringwald filed in the consolidated causes a document entitled "Motion For Summary Judgment," requesting summary judgment on the note and a partial summary judgment in the fraudulent conveyances action. The district court then entered an order sustaining Ringwald's motion and granting a summary judgment in the note suit and a partial summary judgment in the fraudulent conveyances suit to the extent of establishing the defendant Harris' liability on the note. This was accomplished in a single instrument entitled "Judgment." ²

Rule 54(b), F.R.C.P., provides in part:

"When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties ...." (Emphasis added.)

The "judgment" in question does not contain an "express determination that there is no just reason for delay," nor does it contain an "express direction for the entry of judgment." ³ Ordinarily, in these circumstances this Court would clearly be obliged, on its own motion and notwithstanding the failure of either party to raise the question, to dismiss the appeal for want of jurisdiction. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978); Johnson v. McDole, 526 F.2d 710 (5th Cir. 1976); Melancon v. Insurance Company of North America, 476 F.2d 594 (5th Cir. 1973); United States v. Crow, Pope and Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2660 (1973). Here, however, two originally separate suits were consolidated "for all purposes," and the question arises whether a post-consolidation single judgment or order that disposes of all parties and claims in one of the originally separate suits, but not in the other, is governed by the quoted provisions of Rule 54(b).

There appears to be little direct authority on this point. There is broad language in certain opinions that for purposes of Rule 54(b) consolidated suits retain their separate identities, so that compliance with the rule is determined as if there had been no consolidation. See, e.g., In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439 (1st Cir. 1972). These expressions are generally based on the statement in Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933), that "consolidation ... does not merge the suits into a single cause ...." In contrast, other cases appear to view consolidation as in effect merging the previously separate suits for purposes of finality of judgment. See Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 431 F.2d 1199 (6th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971). Still other decisions indicate that the result will turn on the extent and purposes of the consolidation. See, e.g., Jones v. Den Norske Amerikalinje A/S, 451 F.2d 985, 986-87 (3rd Cir. 1971) (where the "order of consolidation was not for all purposes but only for trial," compliance with Rule 54(b) would be judged as if there were no consolidation); Bogosian v. Gulf Oil Corp., 561 F.2d 434, 441 (3rd Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978) (for purposes of Rule 54(b) "... at least absent consolidation for all purposes of cases separately filed, each civil action is to be viewed as a separate unit"). In our view, the latter approach is preferable. We do not consider Johnson as mandating a different rule. Johnson predated the Rules of Civil Procedure and the Court did not have before it any issue relating to the finality or completeness required of a judgment as a predicate for appeal. Moreover, the precise nature of the consolidation ordered in Johnson is not clear.

Consolidation is now governed by Rule 42(a), F.R.C.P., which provides:

"(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

Whether Rule 42(a) makes an inherent distinction between ordering a joint trial or hearing of some or all issues in separate actions and ordering that the actions be consolidated, is the subject of some scholarly debate. Whatever the proper resolution of this question may be, the wording and structure of the rule strongly suggest that consolidation is not confined to ordering that all hearings and trial of all issues in the actions be joint. ⁴ Moreover, it is recognized that under Rule 42(a) "one or many or all of the phases of the several actions may be merged." 5 Moore's Federal Practice § 42.02 (2nd Ed. 1981).

With respect to the effect of consolidation on Rule 54(b), 9 Wright & Miller, Federal Practice and Procedure: Civil § 2386 (1971), contains the following commentary:

"Although it is usually said that consolidated actions do not lose their separate identity, a state court has reasoned very persuasively that they should be treated as a single action for purposes of Rule 54(b), and that a judgment in the consolidated cases that does not dispose of all claims and all parties is appealable only if certified as that rule requires. (Citing State ex rel. Pacific Intermountain Exp., Inc. v. District Court of Second Judicial Dist., Wyo.1963, 387 P.2d 550, 552) (footnotes omitted)."

While a consolidation may not in every respect merge separate actions into a single suit, we see no reason why a proper consolidation may not cause otherwise separate actions to thenceforth be treated as a single judicial unit for purposes of Rule 54(b) when the consolidation is clearly unlimited and the actions could originally have been brought as a single suit. ⁵ This much, we think, is likely implied by the statement in the Advisory Committee notes to Rule 42: "For the entry of separate judgments, see Rule 54(b)." ⁶

Therefore, we hold that where, as here, there is proper consolidation of causes that could have been filed as a single suit, and the consolidation is clearly for all purposes, the provisions of Rule 54(b) must be complied with notwithstanding that the judgment or order in question disposes of all the claims and parties in one of the original actions. ⁷ Because the judgment in the instant case does not comply with Rule 54(b), the appeal is dismissed. The dismissal, however, is without prejudice to the right to seek another appeal should proper certification in accordance with Rule 54(b) subsequently be granted by the district court.

Accordingly, the appeal is DISMISSED for lack of jurisdiction and the cause is REMANDED to the district court for further...