Cross-appeals in civil cases.
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 ruling that is separate and distinct from the appealed final judgment, the appellee must file a notice of appeal (thereby becoming an appellant in a separate appeal), rather than a notice of cross-appeal. (7)
This distinction can be critical because the appellee in a civil case must serve the notice of cross-appeal within 30 days after rendition of the judgment or order appealed from, or 10 days after service of the appellant's notice of appeal, whichever is later. (8) This contrasts with the requirements placed upon the appellant, who must file a notice of appeal within 30 days of rendition of the order sought to be appealed. (9) Therefore, a party who mistakenly believes that a cross-appeal, rather than a separate appeal, is appropriate and relies on the more liberal deadline for filing a notice of cross-appeal, may end up the proud possessor of an untimely appeal, rather than a timely cross-appeal.
Breakstone v. Baron's of Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988), (10) demonstrates the potential problem. In that case, the plaintiff won a verdict and judgment and the defendants filed post-trial motions. Those motions were denied by the trial court. In the same order, the court denied plaintiffs' motion for attorneys' fees. The defendants timely filed a notice of appeal, and the plaintiff, within 10 days after the defendants' notice, but more than 30 days after entry of the order, filed a notice of cross-appeal.
The appellate court held that it had no jurisdiction to hear the plaintiffs' cross-appeal. As the court explained, a cross-appeal "piggy backs" jurisdictionally on the notice of appeal, and is, therefore, confined to those trial court orders or rulings adverse to the appellee that either "merge" into or are an inherent part of the order properly under review in the main appeal. The trial court's ruling on the plaintiffs' attorneys' fees motion had been set forth in the same order as its denial of the defendants' post-trial motions, but the defendants had appealed from the earlier judgment, not from the post-trial order. The post-trial order had merely rendered that earlier judgment final. The attorneys' fees order, therefore, was a separately appealable order that did not "merge" into the final judgment, (11) and the district court was without jurisdiction to review the order under the plaintiffs' cross-appeal. Nor could the court treat the notice of cross-appeal as a notice of appeal because it was not filed within 30 days of rendition of the order in question.
The Third District in Florida Windstorm Underwriting v. Gajwani, 30 Fla. L. Weekly D1213 (Fla. 3d DCA May 11, 2005), applied this principle to foreclose review of a plaintiff's cross-appeal of a judgment that had been entered in favor one defendant, even though that judgment was contained in the same order as a judgment entered against another defendant who had appealed. In dismissing the cross-appeal, the court held that a judgment against one defendant was separate and distinct from a judgment against another defendant, even if the two judgments were combined in the same document. In doing so, the court disagreed with the holding of the First District in Sun Bank of Gainesville v. O'Steen Brothers, Inc., 634 So. 2d 262 (Fla. 1st DCA 1994), which had held under similar circumstances that a plaintiff could cross-appeal from a final summary judgment in favor of one defendant when the second defendant had appealed a judgment entered against it contained in the same document.
Can an Appellee Cross-appeal When the Final Judgment Is Wholly Favorable?
A conditional cross-appeal, sometimes referred to as a "protective" or "contingent" cross-appeal, may be filed when a party is generally pleased with the judgment, but wants to "insure that any errors against his interests are reviewed so that if the main appeal results in modification of the judgment his grievances will be determined as well." (12) A conditional cross-appeal is reached only if the appellate court reverses or modifies the judgment subject of the main appeal. (13) Numerous federal decisions have endorsed this practice. (14) Federal decisions support the practice of conditionally cross-appealing from a wholly favorable judgment by reasoning that once an appellate court reverses or modifies the judgment, that judgment may then become adverse to the appellee's interests. (15)
Although Florida law on this issue is scant, it appears to support this practice as well. In Allington Towers North, Inc. v. Weisberg, 452 So. 2d 1122 (Fla. 4th DCA 1984), the Fourth District Court of Appeal addressed whether a builder's third party indemnification claim against subcontractors would survive after the appellate court reversed the trial court's order dismissing the complaint against both the builder and the subcontractors. There, plaintiffs appealed the trial court's order dismissing the case. The defendant builder, however, did not appeal the order as it related to its third party claim against the subcontractors. In reversing the trial court's order and reactivating the main claim, the Fourth District held that "defendant builder should not be barred from exercising his indemnification claim because he failed to appeal from an order which entirely vindicated him." (16) However, the court noted that "[p]erhaps it would have been better practice for the builder to file what would be tantamount to a contingent cross-appeal but we do not require it." (17)
In Dauer v. Freed, 444 So. 2d 1012 (Fla. 3d DCA 1984), (18) the court held that it could consider a cross-appeal even though the final judgment was wholly favorable to the appellees, for the simple reason that an appellee may assert as error any adverse interlocutory order entered before the final judgment. In his concurrence, Judge Hubbart agreed, although he admitted that the question was "not free from doubt." As he explained, cross-appeal practice replaced the prior practice of assignments of error, and under that prior practice, adverse interlocutory rulings could be reviewed. Judge Hubbart reasoned that to hold that cross-appeals could never be taken when the final judgment is wholly favorable to the appellee would be inconsistent with the prior practice and drastically limit the scope of cross-appeals. (19)
Can an Appellee Waive Issues by Failing to File a Conditional Cross-appeal?
Allington Towers North suggests that failing to file a conditional cross-appeal will not result in a waiver of arguments for purposes of subsequent proceedings. Moreover, the doctrine of law of the case applies only to issues that were decided expressly or by necessary implication by an appellate court. (20) It appears, however, that at least certain types of arguments may be waived by failing to raise them by way of conditional cross-appeal.
In AirVac, Inc. v. Ranger Insurance Co., 330 So. 2d 467 (Fla. 1976), for example, the defendant moved for leave to amend the pleadings shortly before trial. The request was denied, but the defendant prevailed at trial. On appeal, the defendant did not raise the amendment issue by cross-appeal. The district court of appeal reversed the judgment for the defendant and remanded for a new trial. On remand, the trial court held that the defendant was precluded from raising the amendment issue. The Supreme Court agreed. (21) Although the Supreme Court in AirVac referred to its decision as an application of law of the case, in Florida Department of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001), the court clarified that the basis of the AirVac decision was waiver, rather than law of the case.
It is unclear how far the AirVac holding extends and to what extent an appellee who fails to cross-appeal may be in danger of waiving points other than amendments to the pleadings. A general rule requiring an appellee to file a conditional cross-appeal in order to avoid waiver would be undesirable. Such a rule would lead to an increase in the filing and briefing of such cross-appeals. Yet, because most cases are affirmed, and the conditional cross-appeal issues, therefore, are not reached, such a rule would burden litigants and the court system with unnecessary briefing. (22)
In all events, however, in view of the uncertainty presented by AirVac and Juliano, an appellee considering whether to file a conditional cross-appeal as to a particular issue should consider the possibility that a failure to do so will result in waiver, and perhaps err on the side of filing a cross-appeal if the issue is sufficiently important. Of course, even aside from avoiding any issue of waiver, a conditional cross-appeal might be worthwhile if it allows the appellee an efficient method of correcting errors by the trial court that would otherwise burden any subsequent proceedings.
Negative Impacts Resulting from Filing a Cross-appeal
At the same time, taking a cross-appeal, conditional or otherwise, may have some impacts that should be considered when deciding how to proceed. (23) For example, taking a cross-appeal could complicate the issues being briefed and thereby distract the court or detract from more central and possibly stronger arguments. It may also put the appellee in the position of arguing that the trial judge was correct for purposes of arguments supporting affirmance, but erred in connection with the issues on the cross-appeal. This position may be awkward to the extent that the issues are interrelated. A conditional cross-appeal, in particular, presents a fallback argument that may suggest a lack of confidence on the part of the appellee in arguments for affirmance.
Other possible ramifications may be more speculative but worth considering. For example, setting aside the issue of possible waiver noted above, if an appellee does not take a conditional cross-appeal to challenge unfavorable interlocutory rulings, and the trial court adheres to those rulings on remand, the appellee can take part in further proceedings below with the knowledge that it may have one or more arguments that can be raised on appeal in the event of an adverse judgment the second time around. This knowledge could be used as a bargaining chip in settlement negotiations. On the other hand, if in the original appeal the appellee pursues a conditional cross-appeal and the court not only reverses the judgment but also rules against the appellee on the conditional cross-appeal issues, that bargaining chip will be lost.
When faced with a favorable judgment, the appellee should first consider whether it accords all the relief sought. If so, then no cross-appeal will be required to argue any grounds in support of affirmance, even grounds that require the appellee to argue that portions of the trial court's order were in error, as long as the appellee is seeking to support the same result reached by the trial court rather than an enlargement of its rights.
If, on the other hand, the judgment is not wholly favorable, and the unfavorable aspect is an inherent part of the judgment, a cross-appeal may be taken. If the unfavorable aspect of the judgment is analytically distinct from the order appealed by the appellant, or is contained in a separate order, an appeal, filed within 30 days, rather than a cross-appeal will be in order.
Even if the judgment is wholly favorable, the possibility of filing a conditional cross-appeal should be considered. A cross-appeal will eliminate possible arguments in subsequent proceedings that challenges to the rulings in question have been waived. Further, filing a conditional cross-appeal may allow the appellee to overturn adverse rulings without having to go through the time and expense of further proceedings below. Pursuing such a cross-appeal, however, may negatively impact the presentation of arguments for affirmance of the judgment.
(1) Although this article focuses on civil appeals, cross-appeals may be taken in criminal cases. Criminal defendants can appeal only from final orders while the state may appeal from either final or interlocutory orders. However, if the state files the main appeal from an interlocutory order, a defendant may then raise a cross-appeal addressing any part of that order. See Lopez v. State, 638 So. 2d 931 (Fla. 1994). Conversely, if the defendant files the main appeal from a final order, the state may cross-appeal only rulings of law, but not fact. See FLA. STAT. [section] 924.07(1)(d) (2005); FLA. R. APP. P. 9.140(c)(1)(K).
(2) See FLA. R. APP. P. 9.110(g); cf FED. R. APP. P. 4(a)(3) ("If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days.... ").
(3) See Breakstone v. Baron's of Surfside, Inc., 528 So. 2d 437 (Fla. 3d D.C.A. 1988); Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058,1059 (Fla. 3d D.C.A. 1981).
(4) See, e.g., Gellert v. E. Air Lines, Inc., 370 So. 2d 802 (Fla. 3d D.C.A. 1979) (holding that a defendant who obtained a directed verdict on one ground could, without a cross-appeal, argue for affirmance on a separate ground that was not accepted by the trial court).
(5) See Credit Indus. Co. v. Re-Mark Chem. Co., 67 So. 2d 540, 541 (Fla. 1953); City of Coral Gables v. Puiggros, 376 So. 2d 281, 284 n.4 (Fla. 3d D.C.A. 1979).
(6) Other Florida decisions have held that the time limit for filing a notice of cross-appeal is nonjurisdictional and may be extended by the appellate court. See, e.g., Breakstone, 528 So. 2d at 439. An appellate court, however, may dismiss an untimely cross-appeal if there is no good reason for the delay or the rights of other parties are prejudiced. See PHILIP J. PADOVANO, FLORIDA APPELLATE PRACTICE [section] 21.9 (2004 ed.).
(7) See Webb, 397 So. 2d at 1059-60.
(8) See FLA. R. APP. P. 9.110(g).
(9) See FLA. R. APP. P. 9.110(b).
(10) See also Webb, 397 So. 2d at 1059-60; Fla. Windstorm Underwriting v. Gajwani, 30 Fla. L. Weekly D1213 (Fla. 3d D.C.A. May 11, 2005).
(11) See FLA. R. APP. P. 9.130(a)(4) (providing that, other than orders on motions that postpone rendition, nonfinal orders entered after final orders are reviewable by the method prescribed in Rule 9.110).
(12) Hartman v. Duffey, 19 F.3d 1459, 1465 (D.C. Cir. 1994).
(13) See id.
(14) See, e.g., Council 31 Am. Fed'n of State, County & Mun. Employees, AFL-CIO v. Ward, 978 F.2d 373, 380 (7th Cir. 1992) ("Nominally prevailing parties are entitled to file such cross-appeals against the contingency that this court will reverse an otherwise thoroughly satisfactory judgment."); Ericsson, Inc. v. Harris Corp., 352 F.3d 1369, 1376 (Fed. Cir. 2004) (addressing defendants' conditional cross-appeal of a damages issue after the appellate court reversed the trial court's grant of judgment as a matter of law).
(15) See id.; see also CHARLES A. WRIGHT ET AL., 15A FEDERAL PRACTICE AND PROCEDURE [section] 3902 (2d ed. 1991). Under Florida law it is also generally true that a person bringing an appeal must show that he or she is, or will be, injuriously affected by the order sought to be reviewed. King v. Brown, 55 So. 2d 187, 188 (Fla. 1951).
(16) Allington Towers North, 452 So. 2d at 1123.
(17) Id. (footnote omitted).
(18) See also Jordan v. Fehr, 902 So. 2d 198, 201 (Fla. 1st D.C.A. 2005) (stating that once the court's jurisdiction is properly invoked by the appellant's notice of appeal, the court may review any ruling occurring prior to the filing of that notice).
(19) See Allen v. TIC Participations Trust, 722 So. 2d 260, 261 (Fla. 4th D.C.A. 1998) (agreeing with Judge Hubbart's analysis and holding that a cross-appeal may bring up for review prior orders that have merged into the final judgment). Such a cross-appeal is technically from the final order even though the error asserted by appellee relates to a prior interlocutory order. Id. at 261. The court in Breakstone, 528 So. 2d at 439, stated that the cross-appeal notice must identify the specific orders claimed as error. This seems questionable, since the rules do not expressly require it and the appellant is not required in the notice of appeal to specify the interlocutory orders claimed as error.
(20) The doctrine of law of the case provides that "questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceeding." Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001).
(21) Airvac, 330 So. 2d at 469.
(22) For interesting discussions regarding conditional cross-appeals and related issues of waiver and law of the case, see the majority and dissenting opinions in Nautilus Group, Inc. v. Icon Health & Fitness, Inc., 437 F.3d 1376 (Fed. Cir. 2006), and Basile v. H & R Block, Inc., 894 A.2d 786 (Pa. Super. Ct. 2006). The 11th Circuit appears to hold that an appellee does not waive arguments regarding erroneous trial court rulings by failing to cross-appeal from a judgment that is wholly favorable. See Mosher v. Speedstar Div. of AMCA Int'l, Inc., 52 F.3d 913, 917 (11th Cir. 1995).
(23) See generally DAVID G. KNIBB, FEDERAL COURT OF APPEALS MANUAL [section] 11.2 (2004) (discussing considerations regarding decision to cross-appeal).
E. Kelly Bittick, Jr., is a shareholder in the Tampa office of Carlton Fields, PA. His practice includes complex litigation, products liability, and appeals. He received his J.D. from the University of Florida and his A.B. from Harvard University, both with high honors.
Sorraya M. Solages is currently an associate with Carlton Fields concentrating in appeals and trial support. She received her J.D. from Nova Southeastern University Shepard Broad Law Center and her B.A. from the University of Central Florida. She also served as a judicial clerk to Judge Robert M. Gross of the Fourth District Court of Appeal.
This column is submitted on behalf of the Appellate Practice Section, Thomas D. Hall, chair, and Wendy S. Loquasto, editor.