Consolidated Actions Maintain Separate Identities For Determining Finality of Judgment and Time to Appeal

In RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), the Court of Civil Appeals dismissed a portion of a father’s appeal in a parental rights action as untimely.  On November 6, 2009, the Court of Civil Appeals issued a new opinion of rehearing again dismissing the appeal, explaining that the appeal was not made timely by the fact that the underlying case was part of an action that had been consolidated.  RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Nov. 6, 2009).

The Court of Civil Appeals dismissed a portion of the father’s appeal as untimely because it found the appeal untimely.  The court found that the underlying post-judgment motions were denied by operation of law, and that an appeal from that denial was not made until after the appeal time had run.  On rehearing, the father argued that his appeal was timely because the underlying case was part of a consolidated action. 

The father filed an action to determine paternity and to determine child support obligations.  After the father was determined to be the father and child support obligations set, the mother filed a petition for rule nisi claiming that the father had failed to pay the ordered support.  The mother also filed a separate action to have the father’s parental rights terminated.  The mother moved for default judgment in both cases, and the trial court held a joint hearing on the default.  After the hearing,  the trial court entered judgment against the father in the paternity action on September 19, but did not enter judgment in the termination proceeding until September 29.  The father timely filed post-judgment motions in both cases, and the trial court issued a joint order denying the post-judgment motions in both cases ion October 23.  The father based his appeal date for both cases from the October 23 order.

The appeal of the paternity action was dismissed as untimely, and the post judgment motion had been denied by operation of law prior to the October 23 order. and the appeal based on the October 23 date was untimely.  On rehearing, the Court of Civil Appeal rejected the argument that the appeal was timely because the actions had been consolidated.

As an initial matter, the court stated that there was no evidence that the actions had actually been consolidated.  Rather, it appears that the trial court just held joint hearings and issued joint orders.  Nonetheless, the Court of Civil Appeal analyzed the issue as if the cases had been consolidated.

The court held that cases do not lose their individual identities even after they are consolidated pursuant to Ala. R. Civ. P. 42.  Thus, judgment may be entered in one of the consolidated cases and be a final judgment even though the other case is still pending.