Education of Attorneys on Appeal And/or Cross Appeal

Publication year2009
CitationVol. 78 No. 3 Pg. 20
Education of Attorneys on Appeal and/or Cross Appeal
No. 78 J. Kan. Bar Assn 3, 20 (2009)
Kansas Bar Journal
March, 2009

By James D. Oliver

I. Introduction

Yogi Berra has been reversed in part. In the legal arena, sometimes it is over before it's over. But another famous Yogi-ism– "when you come to a fork in the road, take it"– remains controlling. In Cooke v. Gillespie,[1] the Kansas Supreme Court ruled that a potentially dispositive statute of limitations defense had been lost by failure to cross-appeal or brief the issue in a previous appeal. While Cooke was the last installment in unusually protracted litigation that had continued for 20 years, many cases present at least the potential for multiple appeals.[2] The opinion in Cooke sounds an alert that parties who are satisfied with the outcome in district court may nevertheless need to cross-appeal to avoid losing important rights if the case is remanded. This article examines the mandatory crossappeal rule and its implications in practical circumstances, including discussion of three questions: (1) Is a cross-appeal necessary when the appellee is 100 percent satisfied with the judgment? (2) Is conditional cross-appeal of issues that are moot if the judgment is affirmed mandatory? (3) Is interlocutory cross-appeal permitted or mandatory or neither?

II. Factual Background of Cooke v. Gillespie

Cooke was one of a series of related cases in which opposing factions made their way six times to the Kansas Supreme Court, three times to the Kansas Court of Appeals, and once to the Tenth U.S. Circuit Court of Appeals. One of the cases settled in 2002. Cooke, as trustee of the Polly G. Townsend Trust, and Gillespie, as executor of the Warren B. Gillespie Estate, had been represented by the same law firm and shared the settlement 50-50. But they were in dispute over a portion of the settlement proceeds set aside for reimbursement of litigation expenses. Their law firm filed an interpleader action and paid the funds into court. The Gillespie Estate claimed the funds under a number of theories, including oral and written contract, the "common fund" theory, and unjust enrichment or quantum meruit. Cooke claimed the funds for the Townsend Trust and moved for summary judgment, contending that Gillespie's claims were barred by the statute of limitations. Gillespie filed a cross-motion for summary judgment contending that if his claims were barred by limitations, so were Cooke's. The district court denied the summary judgment motions, and the case was then tried to the court in June 2003.

The district court ruled for Cooke and against Gillespie on the merits of their substantive claims. As a result, the court said it was unnecessary to reach Cooke's statute of limitations defense and declined to rule on it. The court of appeals, in an unpublished decision, reversed the district court, finding that Gillespie was entitled to an equitable share of the litigation expense reimbursement on "common fund" and unjust enrichment or quantum meruit theories. The court of appeals remanded for a new trial without mentioning Cooke's statute of limitations defense. Cooke's appellee's brief had noted that she asserted a limitations defense, but that it was not reached by the district court and was not an issue on appeal.

On remand Cooke again asserted the statute of limitations defense. This time, the district court ruled that limitations was not a valid defense because Gilliespie's claims were similar to claims made in a previous case that had been dismissed for lack of jurisdiction. Therefore, the "saving" statute, K.S.A. 60-518, avoided the bar of limitations. The court then determined that the equitable distribution of the interpleaded funds would be $33,000 to Cooke, as trustee of the Townsend Trust, and $223,000 to Gillespie, as executor of the Gillespie Estate. Cooke appealed, contending that the trial court's ruling on the statute of limitations was erroneous.

The Kansas Supreme Court declined to consider Cooke's argument. The Court said that the limitations defense had been waived and abandoned as an issue by failure to raise it in response to Gillespie's previous appeal.[3] This decision is notable not just for the ruling made, but also because the Court itself raised the issue of waiver or abandonment in the prior appeal. No such argument was made in the appellee's brief. Thus, an issue once waived or abandoned on appeal cannot be revived, and the resulting legal bar cannot be waived by the opposing party's failure to assert it.

III. Controlling Legal Principles

The Court's analysis in Cooke begins with K.S.A. 60-2103(h), which provides that when "an appellee desires to have review of rulings and decisions of which such appellee complains," the appellee shall timely "give notice of such appellee's cross appeal." The Court cites numerous cases holding that, in the absence of a notice of cross-appeal complying with the statute, rulings adverse to the appellee cannot be considered on appeal.[4] The Court also cites the established principle that "a second and direct appeal– by the original appellee– cannot be used as a substitute for a cross-appeal as directed by the statute."[5]

The right of appeal is not guaranteed by the state or federal constitutions[6] and is conferred solely by statute. Therefore, compliance with the statutes is jurisdictional.[7] By raising the issue sua sponte, without objection by the opposing party, the Court in Cooke emphasizes that the notice of cross-appeal under K.S.A. 60-2103(h) is a jurisdictional requirement, just like the appellant's notice of appeal under K.S.A. 60-2103(b). The Court has plainly stated in several cases that a timely notice of cross-appeal is jurisdictional.[8] Because courts are duty-bound to police their own jurisdiction, the appellate courts raise jurisdictional issues regardless of whether any party does.[9]

But the rule that a notice of cross-appeal is jurisdictional is not universal. In federal court, the circuits have split over the question. Some circuits hold that a notice of cross-appeal is not a jurisdictional requirement but is procedural and can be excused when circumstances so warrant.[10] In other circuits, including the Tenth Circuit, the time limits for filing a cross appeal are mandatory and jurisdictional.[11]

Cooke also notes that Cooke could have raised her statute of limitations argument before as an alternative ground for affirming judgment in her favor, and that her failure to do so is also grounds for precluding appellate consideration of the issue on the second appeal.[12]

IV. Practical Implications of the Mandatory Cross-Appeal Rule

While these rules might seem simple on their face, the courts have had surprising difficulty stating and applying the rule consistently. When the appellee is dissatisfied with the judgment and wants more money or other additional relief, a cross-appeal is necessary to obtain it. A judgment cannot be altered to the benefit of a nonappealing party.[13] But is a cross-appeal necessary to complain that the trial judge should have ruled for the appellee for a different reason? Do the appellate courts really want to read cross-appeal briefs on every possible issue, including rulings on evidence and jury instructions, which resulted in no prejudice because the appellee won on all counts? In the absence of cross-appeal, must errors be repeated on remand because the court thereafter lacks power to do anything but repeat the error? These appellate courts' responses to these questions are instructive, but not settled on all points.

V. Cross-Appeal vs. the "Right for any Reason" Rule

Cross-appealing rulings adverse to the appellee may be unnecessary and counter-productive. The appellee must determine whether the issue he proposed to argue on appeal demonstrates that the trial court committed prejudicial error against the appellee or that the trial court actually was right for a different reason than the one given. Justice Louis Brandeis stated the basic rule for determining when a crossappeal is necessary in United States v. American Railway Express Co.:

It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, 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.[14]

If an appellee seeks any greater relief (such as a broader injunction, more damages, prejudgment interest, or attorneys fees) a cross-appeal is clearly required, but an appellee "may defend the judgment won below on any ground supported by the record without filing a cross-appeal."[15]

An appellee who fails to discern the difference and takes an unnecessary cross-appeal may encounter a court's dismay. Judge Frank Easterbrook of the Seventh Circuit put it most pointedly:

Cross-appeals for the sole purpose of making an argument in support of the judgment are worse than unnecessary. They disrupt the briefing schedule, increasing from three to four the number of briefs, and they make the case less readily understandable to the judges. The arguments will be distributed over more papers, which also tend to be longer. Unless a party requests the alteration of the judgment in its favor, it should not file a notice of appeal.[16]

Perhaps the strongest condemnation of an unnecessary...

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