Cross-appeals in civil cases.

• Author: Bittick, E. Kelly, Jr.
• Position: Florida

Save for a few inexplicable rulings by the trial judge, your evidence went in smoothly. You devastated your opponent's witnesses on cross. Your closing was compelling and the jury deliberated only 10 minutes before returning a verdict for your client. The trial court entered final judgment awarding your client all the relief requested. Or, perhaps the jury did not see it your way, but the trial court entered judgment in your favor in accordance with your motion for directed verdict. In either event, you prevailed. Your opponent will file a notice of appeal, but you know that most cases are affirmed. You should nevertheless consider whether you need to file a cross-appeal. A cross-appeal is mandatory if the judgment was less than wholly favorable and you plan to seek additional or different relief on appeal, and a "conditional cross-appeal" might be prudent even if you prevailed completely. (1)

When Is a Cross-appeal Mandatory?

Although the Florida Rules of Appellate Procedure provide for the timing of cross-appeal notices and procedures for briefing cross-appeals, they do not define "cross-appeal" nor set forth when a cross-appeal is permitted or required. In fact, about the only thing to be learned about cross-appeals from the rules is that it is the appellee who files the notice of cross-appeal. (2)

The case law, however, explains that a cross-appeal is the vehicle for the appellee to challenge unfavorable portions or aspects of the order appealed from by the appellant. (3) Accordingly, if the judgment is wholly favorable to the appellee, and the appellee wishes only to defend that judgment on appeal, no cross-appeal is required. (4) This is true even when the appellee wishes to argue that the trial court erred in rejecting one or more of the appellee's arguments. As long as the appellee seeks only to defend the result reflected in the judgment or order appealed by the appellant, no cross-appeal is necessary. (5)

A party may not, however, attack a final judgment to enlarge its own rights or lessen the rights of the opposing party without filing a cross-appeal. Jessup v. Redondo, 394 So. 2d 1031 (Fla. 3d DCA 1981), illustrates this point. In that case, the defendant moved for a new trial and for judgment in accordance with its prior motion for directed verdict. The trial court granted the motion for new trial, and denied the directed verdict motion. The plaintiff appealed the grant of a new trial. On appeal, the court rejected the defendant's argument that a directed verdict should have been granted, because the defendant had failed to cross-appeal from the trial court's denial of its directed verdict motion. Thus, the cross-appeal was required because the defendant was seeking to do more than simply defend the judgment.

A more unusual illustration is the recent decision of the First District in Wiccan Religious Cooperative of Florida, Inc. v. Zingale, 898 So. 2d 134 (Fla. 1st DCA), review granted, 915 So. 2d 1198 (Fla. 2005). The Wiccans filed an action for declaratory judgment challenging the constitutionality of a sales tax exemption statute, also arguing that they were unlawfully denied a renewal of their certificate of exemption. The trial court granted the Department of Revenue's motion for summary judgment, ruling that the Wiccans had standing to sue seeking these declarations, but that the statute in question was constitutional.

The Wiccans appealed the court's ruling that the statute was facially constitutional. The department argued in response not only that the statute was constitutional, but that the Wiccans lacked standing. If the standing argument could be used to defend the trial court's judgment, a cross-appeal by the department would have been unnecessary. The standing argument, however, inherently involved an attack on that judgment, because if the plaintiff lacked standing to bring the declaratory judgment action, then the trial court had no jurisdiction to hold the statute constitutional. Yet the department had not filed a cross-appeal.

The First District agreed with the department's lack-of-standing argument, holding that the Wiccans were benefited by the very statutes they were challenging, and, thus, lacked the adverse interest required for standing. In addressing the absence of a cross-appeal, the court acknowledged that a cross-appeal must generally be filed to challenge an unfavorable "portion" of a final judgment otherwise substantially favorable to the appellee, but it stated that the rule was not jurisdictional and could be waived by consent. (6) Because both parties had argued the standing point extensively without objection, the court found that the cross-appeal requirement had been waived. The court accordingly reversed the summary judgment entered for the department on constitutional grounds, and remanded the case with instructions to the trial court to enter summary judgment for the department based on lack of standing.

When Is a Separate Appeal Mandatory?

In Wiccan, the ruling challenged by the appellee was contained in the final judgment that was the subject of the main appeal, and it was integrally related to that final judgment. In contrast, when the appellee wishes to challenge a...