Maine law regarding cross-appeals has long been murky, and as a result that subject has often been the subject of commentary both at this blog (here and here, for instance) and elsewhere. The Law Court brought additional clarity in this area of the law in its recent decision in Tominsky v. Town of Ogunquit. In the Court’s own words, Tominsky “resolve[d] thorny questions” regarding standing requirements, Maine Rule of Civil Procedure 80B, and Maine Rule of Appellate Procedure 2C.
The facts of the case are fairly straightforward. After the Town of Ogunquit issued building permits, a neighbor challenged the permits before the Town’s Board of Appeals. The problem was that the neighbor’s challenge was not timely. Nevertheless, the Board granted a “good cause” exception to the 30-day time limit and considered the merits – only to ultimately deny the appeal. The neighbor appealed under Rule 80B, and the developer felt compelled to bring a separate 80B appeal in the Superior Court raising the untimeliness argument. In an abundance of caution, the developer also subsequently cross-appealed the Superior Court’s decision.
This fact scenario presented “a question of first impression regarding what steps a party that has obtained municipal approval must take in a Rule 80B appeal of a municipal body’s decision on the merits in order to preserve an argument that its opponent’s administrative appeal was fatally tardy.” The Law Court concluded that
a party that has obtained municipal approval (e.g., the permittee) need not, and should not, file its own Rule 80B appeal to assert that the Board improperly granted a good cause exception. … Similarly, if the Superior Court rejects the objecting party’s appeal on the merits, the permittee need not file a cross-appeal should its opponent appeal to [the Law Court]. Rather, the permittee may, pursuant to [Rule 2C], raise the good cause issue in its brief.
The Law Court reasoned that a party lacks standing to appeal a judgment that grants the party’s requested relief, even if the party wished that the judgment relied upon different reasoning. Because the developer had prevailed on the merits, it was not aggrieved had no standing to appeal the Board’s decision that the appeal was timely. The Law Court made it clear that this same reasoning applies to cross-appeals – a cross-appellee must also have standing to file a cross-appeal. If a party is not aggrieved by a Superior Court decision, that party has no standing to cross-appeal.
The Law Court acknowledged that a decision on the merits does differ from a decision on timeliness – one is a judgment on the merits, while the latter results in dismissal. The Law Court noted, however, that Rule 80B does not specifically provide for cross-appeals and that it would lead to unnecessary procedural complications to require cross-appeals in order to preserve the opportunity to obtain a dismissal of the appeal rather than just a decision affirming the Town’s decision on the merits.
Tominsky adopts an important appellate principle – that a “cross-appeal must meet the same justiciability requirements as an initial appeal” – as a matter of Maine law. This principle, which applies more broadly than just in the context of Rule 80B appeals, provides a useful guidepost to practitioners deciding whether or not a cross-appeal is appropriate and necessary.