Yesterday the Law Court, in an opinion written by Justice Connors, Concord General Mutual Ins. Co. v. Estate of Collette J. Boure, touched on two important appellate issues – one of which has been addressed often on this blog. The issues involve timeliness of an appeal and the need for cross-appeals.
The case involved claims for insurance coverage in a motor vehicle accident. One insurance company, Concord General Mutual Insurance Co., filed a declaratory judgment action against the decedent’s estate. The Estate counterclaimed and brought a separate action against another insurer, 21st Century Centennial Insurance Co. After consolidating the cases, the Superior Court granted summary judgment in the insurers’ favor. Judgment entered in favor of Concord on March 4, 2020, and in favor of 21st Century on February 24, 2021. The Estate then appealed on March 10, 2021, identifying both judgments, and Concord filed a cross-appeal to argue for affirmance based on alternative grounds.
First, the Law Court addressed the timeliness of the appeal of the judgment as to Concord. Noting that appeals must generally be commenced by filing a notice of appeal within 21 days after entry of judgment, the Court found the appeal untimely because it was filed a year after entry of judgment.
That straightforward conclusion was complicated by the fact that the case involved consolidated actions. Moreover, the Estate had filed a motion approximately three weeks after entry of judgment as to Concord, seeking to “defer entry of final judgment” because the action involved consolidated cases and entry of final judgment would result in separate appeals on nearly identical issues. The Superior Court had granted the motion.
Nevertheless, the Law Court concluded that the Concord judgment became final on March 4, 2020, starting the clock for filing a notice of appeal. In reaching this conclusion, the Court cited Murphy v. Maddaus, which explains that a judgment becomes final when (1) notation of judgment is entered on the civil docket in accordance with Rule 79(a), and (2) the order to enter judgment “reflects an adjudication of the dispute before the court,” i.e., fully disposes of the whole case. According to the Law Court, consolidation of the Concord and 21st Century actions did not merge the two actions for purposes of appeal. In so holding, the Court cited its recent decision in Marks v. Marks for the proposition that “consolidation is a tool of efficiency and convenience” and does not merge actions “for purposes of finality.” As the Law Court said in Marks,
Consolidated actions retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party.
The Law Court also concluded that, while certain motions can extend the time for filing a notice of appeal, a “motion to defer entry of judgment” is not one of them and, in any event, would have been untimely even if treated as a Rule 59 motion to alter or amend the judgment.
Second, the Law Court addressed (again) the issue of cross-appeals. Noting that Concord had filed a cross-appeal to preserve its argument for alternative grounds for affirmance, the Law Court explained:
When an appellee does not seek any change to the judgment that is on appeal, the appellee need not file a cross-appeal to argue alternative grounds that support the judgment. See M.R. App. P. 2C(a)(1).
This aside from the Court is notable, because the Law Court did not necessarily need to address that issue; the Court dismissed the cross-appeal as moot because the Estate’s appeal of the Concord judgment was untimely. In adding this footnote, the Court appears to be specifically clarifying (as recently urged here) the ambiguity (also discussed on this blog) about when a cross-appeal is necessary. Despite recent decisions suggesting, without citation to Rule 2C, that cross-appeals are necessary to preserve alternative arguments, the Court’s footnote is a reminder that the Rules do not require a cross-appeal in order for an appellee to raise alternative grounds supporting the judgment. Hopefully this latest word on cross-appeals will bring greater clarity to this muddied area of the law.
The takeaways from Concord General? If you have an action involving consolidated cases, that consolidation does not mean that you can wait to appeal entry of judgment as to the party or parties in one action until after entry of judgment as to the party or parties in the other action(s). Moreover, if you are the appellee, the Rules do not require you to file a cross-appeal to preserve alternative arguments – although some of the Court’s prior precedent may suggest otherwise.
One other thought: these issues highlight the importance of consulting with appellate counsel early and often.