Appellate Practice Section Newsletter
The Cross Appeal Revisited
by John J. Bursch
“To Cross Appeal or Not Cross Appeal?”; That is the Question
The confounding question of when to file a cross appeal has twice been the topic of excellent articles in this newsletter. As recently as 1999, some Michigan Court of Appeals judges still took the position that a cross appeal is necessary to preserve review of alternative bases to uphold a trial court judgment, a controversy that was well documented in Morley Witus’ article in the August 1999 newsletter. In a follow-up article that appeared in the Fall 2000 newsletter, Mark Cooney continued to warn that “proceeding without a cross appeal may still be a risky endeavor.”
Mark Cooney’s warning was well founded. In July 2000, a Michigan Court of Appeals panel declined to consider an argument that the trial court had rejected and that the appellee sought to advance in support of affirmance without filing a cross appeal. But in a summary opinion vacating that decision, the Michigan Supreme Court explicitly reaffirmed that “an appellee is not required to file a cross-appeal to advance arguments in support of a judgment on appeal that were rejected by the lower court.” Cacevic v Simplimatic Eng’g Co, 463 Mich 997, 997; 625 NW2d 784 (2001) (citing Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994)); accord Cox v Board of Hosp Managers for the City of Flint, 462 Mich 859, 859; 613 NW2d 719 (2000) (“the [court of appeals] erred in refusing to review four arguments raised by defendant on the erroneous ground that defendant was required to file a cross-appeal to raise them”).
Fortunately, the controversy appears to have finally played itself out. Recent Michigan Court of Appeals panels have consistently followed the Michigan Supreme Court’s 1994 pronouncement in Middlebrooks that cross appeals are unnecessary to urge alternative grounds for affirmance, even if the lower court specifically considered and rejected the alternative ground. See, e.g., Burda Bros, Inc v Wayne Co, 2003 WL 21978755, at *4 (Mich Ct App, Aug 19, 2003); Sayo, Inc v CTM Group, Inc, 2003 WL 21246657, at *5 (Mich Ct App, May 29, 2003); Vandenberg v Vandenberg, 253 Mich App 658, 663; 660 NW2d 341 (2002); Gilmore v Parole Board, 247 Mich App 205, 231 n 13; 635 NW2d 345 (2001); see also United States v American Ry Express Co, 265 US 425, 435 (1924) (an appellee “may urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked, or ignored by it”).1
Although this resolution of one vexing cross appeal question will alleviate the need for cross appeals in many cases, the cross appeal is still an important tool in the appellate practitioner’s toolbox. This article canvasses a number of situations where the tool might come in handy.
The Insatiable Appellee
In the most obvious situation, a cross appeal remains necessary where the appellee seeks “to obtain a decision more favorable than that rendered by the lower tribunal.” Estate of Walter B Herbach v Herbach, 230 Mich App 276, 284; 583 NW2d 541 (1998); accord McCardel v Smolen, 404 Mich 89, 94-95; 273 NW2d 3 (1978) (appellees “may not obtain a decision more favorable to them than was rendered by the Court of Appeals” in the absence of a cross appeal); Regnier v Payter, 2003 WL 21246635, at *7 (Mich Ct App, May 29, 2003) (rejecting appellee’s attempt to attack the trial court’s judgment in absence of a cross appeal); see also American Railway , 265 US at 435 (in the absence of a cross appeal, an appellee may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary”). An appellee may have prevailed in large part in the trial court but be unsatisfied with anything less than overwhelming victory. If an appellee hopes to improve its position on appeal, rather than simply maintain it, a cross appeal is a necessity.
The JNOV/New Trial Quandary
A cross appeal may also be necessary as a result of the interplay between motions for judgment notwithstanding the verdict and motions for new trial. Under MCR 2.610(A)(1), the losing party at trial may move for jnov or, alternatively, for a new trial. If the trial judge grants the motion for jnov, the court must also rule conditionally on the motion for new trial. MCR 2.610(C)(1). Thus, if the losing party at trial succeeds on its motion for jnov but loses on its motion for a new trial, that party may challenge the new trial ruling on appeal as appellee, just in case the appellate court reverses the trial court’s jnov ruling. MCR 2.610(C). Alternatively, if both motions are denied, the prevailing party at trial may ask the appellate court, through a cross appeal, to order a new trial in the event the appellate court is inclined to reverse the jnov ruling. MCR 2.610(E).
The New Trial/Remittitur Gambit
Similarly, a cross appeal may be necessary as a result of the interplay between motions for new trial and remittitur/additur. Under MCR 2.611(E), if a trial court finds that the only error in a trial is the verdict’s inadequacy or excessiveness, the court may deny a motion for new trial on condition that, within 14 days, the nonmoving party consent in writing to the entry of judgment in an amount the court finds the evidence will support. If the moving party appeals, claiming that a new trial is necessary, the party who accepted the “offer” of remittitur or additur in the trial court retains the right to argue on appeal that the original trial verdict was correct. MCR 2.611(E)(2).
The Protective Cross Appeal
Finally, it is sometimes prudent to file a protective cross appeal, which is a procedural device that allows a prevailing party to appeal issues on a contingent basis, in case the appellate court reverses or modifies the favorable judgment. See, e.g. , Hartman v Duffey, 19 F3d 1459, 1465 (DC Cir, 1994) (stating that “[i]n a protective cross-appeal, a party who is generally pleased with the judgment and would have otherwise declined to appeal, will cross-appeal to insure that any errors against his interests are reviewed will be determined as well”); Council 31 v Ward, 978 F2d 373, 380 (CA 7, 1992) (addressing cross-appellant’s conditional cross appeal only after having reversed the district court); Human Servs Plaza P’ship v Huntington Nat’l Bank , 1996 WL 117510 (CA 6, Mar 15, 1996) (recognizing defendant’s conditional cross appeal in case the court reversed the district court).
In the protective cross appeal situation, the appellate court need only reach a cross appeal issue if it agrees with the appellant’s claim of error. Central Benefits Mut Ins Co v Blue Cross & Blue Shield , 1992 WL 393577 (CA 6, Dec 29, 1992) (stating that the “Association’s cross-appeal is conditional; that is, it requests relief if and only if the case is remanded based on plaintiffs’ claims of error. Because we have rejected plaintiffs’ claim of error, the Association’s cross-appeal is rendered moot.”). For example, if a plaintiff prevails at trial despite bad evidentiary, jury instruction, or other rulings, the plaintiff may choose to file a cross appeal regarding those decisions, to be decided if and only if the appellate court decides to grant the appellate relief in the form of a new trial.
So why not always take a conditional appeal? Because there may also be strategic drawbacks. As one commentator has explained:
[A] cross-appellant is in the peculiar position of arguing out of both sides of his or her mouth. On the one hand, as the appellee, he or she is urging that the district court’s judgment be affirmed. On the other hand, he or she is admitting that the district court made mistakes because a cross-appeal was filed. Consequently, parties should consider whether having the position of solely affirming the trial court is the better strategy.
Bradley C. Wright, “Ten Mistakes to Avoid at the Federal Circuit,” Intellectual Property Law Newsletter (Winter 1999) (emphasis added) (listing “cross-appealing when you won below” as one of the mistakes to avoid). In other words, an appellee may not want to posture the case in such a way that both sides appear to be asking for a new trial. The protective cross appeal therefore provides a true opportunity for appellate practitioners to exercise their tactical judgment.
Although nearly all of the case law discussing contingent or protective cross appeals is found in other jurisdictions, the concept has been implicitly acknowledged by the Michigan Court of Appeals. In Levi v Crane & Equipment Rentals, Inc, 2002 WL 522948 (Mich Ct App, Apr 5, 2002), the defendant appealed as of right from a jury verdict in a wrongful death action. On cross appeal, the appellees challenged the trial court’s grant of summary disposition on one of the case’s sub-issues. The Michigan Court of Appeals first affirmed the jury verdict; it then summarily disposed of the cross appeal, specifically noting the cross appeal’s contingent status: “Plaintiffs only seek relief from the trial court’s grant of summary disposition concerning respondeat superior if defendant succeeds on one of its requests for relief, which it did not.” 2002 WL 522948, at *3 n 7. Appellate review of the cross appeal is therefore “unnecessary.” Id . at *3. Accordingly, a protective cross appeal appears to be a valid subset of the general right to cross appeal in Michigan courts, notwithstanding the fact that protective cross appeals are not specifically referenced in the Michigan Court Rules.
Despite recent clarifications by the Michigan Court of Appeals and Michigan Supreme Court that obviate the need for cross appeals in situations where an appellee simply seeks to raise alternative arguments in support of a lower court judgment, the cross appeal remains a valuable and effective tool in a number of unique procedural situations. The crafty appellate practitioner does not neglect this tool by leaving it in the toolbox. The next time you receive a claim of appeal in the mail, do not automatically file it away and begin marking time in anticipation of appellant’s initial appeal brief. You have 21 days in which to strategize a more creative response.2
John J. Bursch is an attorney at Warner Norcross & Judd LLP, where he Chairs the firm’s Appellate Practice Group. Mr. Bursch is a member of the Appellate Practice Section Council, and he serves as the D.C. Circuit Editor for the American Bar Association’s Appellate Practice Journal . Mr. Bursch would like to acknowledge the invaluable research that Janet L. Ramsey contributed to this article regarding protective cross appeals are not specifically referenced in the Michigan Court Rules.
1At first blush, it seems illogical that an appellant need not file a cross appeal to advance issues it raised and the trial court actually rejected. But such a rule makes sense when one considers that Michigan appellate courts routinely affirm lower court judgments that reached the right result, even if for the wrong reason. “Despite the trial court’s error, reversal is not required. This Court will not reverse where the right result is reached for the wrong reason.” Phinney v Perlmutter, 222 Mich App 513, 532; 564 NW2d 532 (1997). Accord Molholland v DEC Int’l Corp, 432 Mich 395, 411, n 10; 443 NW2d (1989) (“A trial court’s ruling which reaches the right result, although for the wrong reason, may be upheld on appeal.”); Immoboliare, Inc v Detroit, 2003 WL 21246630, at *3 (Mich Ct App, May 29, 2003) (“[W]e affirm the trial court’s order denying plaintiff’s motion for leave to amend the complaint, as the trial court reached the correct result, albeit for the wrong reason.”); Burke v Michigan Catastrophic Claims Ass’n, 2003 WL 1879928, at *2 (Mich Ct App, Apr 15, 2003) (“[W]e note that this Court will not reverse a circuit court’s decision reaching the correct result for the wrong reason.”) (citing Phinney).
2See MCR 7.207(B)(1).