We have previously blogged – many times- on the question when one must file a cross-appeal to assert alternative grounds to support a judgment: Cross-Appeals again; Alternate grounds support a judgment? Cross-Appeal!; New rules; When in doubt, cross it out; Follow up.
The Law Court recently issued a decision that we hope definitively answers this question as never: Ageoreow v. Weisberg, 2018 ME 140.
There, the Court stated: “….Mercy filed a cross-appeal to preserve the argument that its motion to dismiss should have been granted based on section 2511 immunity.4 See M.R. App. P. 2B(c), 2C(a).” Footnote 4 reads:
“We acknowledge Mercy’s desire to be cautious, particularly in light of some of our suggestions describing when a cross-appeal is required. See, e.g., MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 28 n.17, 82 A.3d 104; Langevin v. Allstate Ins. Co., 2013 ME 55, ¶ 6 n.4, 66 A.3d 585. Nonetheless, Mercy’s cross-appeal was unnecessary because—as we now clarify—an appellee is not required to cross-appeal “if it argues in favor of affirming the decision in every respect but simply contends that the same result should have been reached through different legal reasoning.” Harris v. Woodlands Club, 2012 ME 117, ¶ 16 n.8, 55 A.3d 449; accord Scott Dugas Trucking & Excavating, Inc. v. Homeplace Bldg. & Remodeling, Inc., 651 A.2d 327, 329 (Me. 1994); State v. Me. Cent. R.R., 517 A.2d 55, 57 (Me. 1986); Givertz v. Me. Med. Ctr., 459 A.2d 548, 556 (Me. 1983) (“An appellee need not cross-appeal to raise an issue that merely could provide an alternative ground to uphold his judgment.”); Alexander, Maine Appellate Practice, § 2C.1(a) at 72 (5th ed. 2018) (“[A]n appellee need not cross-appeal and may argue by brief any issue that could provide an alternative basis to affirm the judgment.”). In any event, we affirm the court’s order on grounds other than Mercy’s assertion of immunity and therefore do not reach that issue.”
As this footnote and the previous blogs explain, Maine (and sometimes First Circuit) law has been a mess on this topic, sometimes suggesting that if the appellee wanted to defend a judgment based on an argument not made by the trial court, the appellee had to cross-appeal. As we discussed, this rule made little sense, since, among other things, the appellee, happy with the judgment itself in its favor, would have no standing to appeal that judgment. So good for the Court in clarifying a cross-appeal is not required.
In 2017, in the amended Maine Rules of Appellate Procedure, Rule 2C now provides:
“ (a) Cross-Appeals.
(1) Need to File. If the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue. The notice of cross-appeal shall be filed with the clerk of the trial court from which the appeal is taken, and shall be processed in the same manner as a notice of appeal filed pursuant to Rule 2A(b)(1). An appellee may, without filing a cross-appeal, argue that alternative grounds support the judgment that is on appeal.”
The notes to the 2017 amendment state:
“Rule 2C replaces Rule 2(c). Rule 2C(a) is added to address cross-appeals. A cross-appeal is commenced by filing a notice of cross-appeal with the trial court. Rule 2C(a)(1) clarifies when an appellee must file a cross-appeal to preserve an issue. If a change in the judgment is sought, a cross-appeal must be filed. See Lyle v. Mangar, 2011 ME 129, ¶ 22, 36 A.3d 867; Costa v. Vogel, 2001 ME 131, ¶ 1 n.1, 777 A.2d 827.
Historically, the Law Court has not required an appellee to file a cross-appeal to preserve an argument that the judgment should be affirmed in every respect but simply contends that the same result could have been reached on alternative grounds. See Harris v. Woodlands Club, 2012 ME 117, ¶ 16 n.8, 55 A.3d 449; Scott Dugas Trucking & Excavating, Inc. v. Homeplace Bldg. & Remodeling, Inc., 651 A.2d 327, 329 (Me. 1994); State v. Me. Cent. R.R., 517 A.2d 55, 57 (Me. 1986); Givertz v. Me. Med. Ctr., 459 A.2d 548, 556 (Me. 1983); but see MaineToday Media v. State, 2013 ME 100, ¶ 28 n.17, 82 A.3d 104; Langevin v. Allstate Ins. Co., 2013 ME 55, ¶ 6 n.4, 66 A.3d 585; Millien v. Colby College, 2005 ME 66, ¶ 9 n.3, 874 A.2d 397; Littlefield v. Littlefield, 292 A.2d 204, 208-09 (Me. 1972).”
So is the cross-appeal issue by rule and case law finally, absolutely resolved? Well …. almost.
It is certainly answered as to alternative legal arguments – it is clear there is no need to appeal. It’s slightly less clear if the alternative ground involves a “finding” that the court below did not make. Even if the appellee doesn’t want to attack the bottom line judgment – e.g., X wins $Y – in any respect, the Court has previously suggested that a cross-appeal is necessary to assert “findings” should have been made at the trial level that would sustain the judgment. We would have less heartburn on this issue if the Court had confirmed in that footnote 4 that there was no need to cross-appeal if only asserting alternative grounds, like Rule 2C, and didn’t just focus on “legal reasoning.”
The rule should be – and we’re 90% sure is – that the only test for having to cross-appeal is whether you want anything changed in the judgment. Such a rule is clear and requires no need to figure out what a “finding” might be separate from the reasoning of the trial court.
So what to do? If you as an appellee want to assert alternative legal grounds that don’t involve any factual findings other than those made below, then I think you’re all set. No need to cross-appeal. If you want to argue that the judgment should be sustained because the factfinder should have found X, then ….