A recent First Circuit decision brings up the very murky issue of when one must file a cross-appeal. School Union No. 37 v. United National Ins. Co., No. 09-2040 (Aug. 19, 2010). [http://www.ca1.uscourts.gov/pdf.opinions/09-2040P-01A.pdf]
The general rule is very simple, spelled out by Justice Brandeis:
It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.
United States v. American Railway Express Company, 265 U.S. 425, 435, 44 Sup. Ct. 560, 564 (1924). [http://ftp.resource.org/courts.gov/c/US/265/265.US.425.666-668.html] See also D. Alexander, Maine Appellate Practice, § 2.7 (3d ed. 2008)(a cross-appeal is essential if the party “wishes to raise an issue and modify a judgment in a manner that is different from the change sought by the appellant.”)
In other words, you have to cross-appeal if you want a result that changes the judgment in any way. If the judgment is for $100 and you want $100.01, you cross-appeal. But if the judgment is $100, based on argument X, and you wanted to win on argument Y, then you shouldn’t have to file a cross-appeal. Indeed, if there were no first appeal, you wouldn’t have standing to appeal even if you wanted to. See Brooks v. Town of North Berwick, 1998 ME 146, ¶10, 712 A.2d 1050, 1053 [http://www.courts.state.me.us/court_info/opinions/documents/98me146b.htm] (mere dissatisfaction with the “legal reasoning or basis for a decision does not amount to a cognizable aggrievement necessary” to establish the particularized injury required to prove standing). And if the other side appeals, you are free to argue Y as an alternate ground to support the judgment – indeed, sometimes you can even cite argument Z, never raised before. See C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3904 (“At times a party may be able to urge in support of a judgment arguments that were not even advanced in the district court”).
But while this rule seems fairly straightforward, there are some decisions that seem more complicated – at least to me. School Union No. 37 is one of them. The defendant insurer raised two arguments in the district court for defeating indemnity coverage: there was no "wrongful act" within the meaning of the policy, and the equitable reimbursement of non-tuition educational expenses was not "money damages" within the meaning of the policy. The Magistrate Judge recommended summary judgment in favor of the insurer, finding that while there was a "wrongful act", the equitable reimbursement of non-tuition expenses was not "money damages." The insured filed objections; the insured did not. The District Court affirmed, and the insured appealed. The First Circuit reversed, finding that liability for reimbursement of the non-tuition expenses constituted "money damages" within the meaning of the policy. It then refused to review the Magistrate Judge's finding that there was a "wrongful act." The Court of Appeals cited first the fact that the insurer did not file any objection to the Magistrate Judge’s ruling. I understand that part of the decision. But then it said “additionally,” that the insurer should have filed a cross-appeal. This I don’t get.
The insurer won a judgment saying no coverage. Just because it was ground A instead of ground B, shouldn’t require a cross-appeal. If the insured had not appealed, the insurer would not have had standing to file any appeal, correct? So why was a cross-appeal necessary here? Well, Cathy, maybe it’s because it’s a declaratory judgment, so the specific grounds of the ruling become a part of the judgment itself. Hmmm. But the insurer still wouldn’t’ve had standing to appeal on its own, would it?
The situation before the Maine SJC is similarly opaque. In Littlefield v. Littlefield, 294 A.2d 204 (Me. 1972), the Court said someone had to cross-appeal to raise even an additional ground to support a judgment. In Marxsen v. Board of Directors SAD N. 5, 591 A.2d 867 (Me. 1991) (overruled on other grounds), the SJC changed its mind, aligning itself with the federal rule:
The majority of state courts as well as the federal court system follow the well-established rule that allows an appellee to defend, although not extend, the judgment on a ground alternative to that on which the trial court relied, “whether it was ignored by the court below or flatly rejected.” When the appellee seeks no relief from the appellate court beyond that presented to the trial court, the appellee need not cross-appeal to raise an alternative ground for affirming the judgment. This rule is consistent with the unquestioned authority of this court to affirm a case on a rationale different from that relied on by the trial court.
(citation and footnote omitted). See also Scott Dugas Trucking & Excavating, Inc. v. Homeplace Bldg. & Remodeling, Inc., 651 A.2d 327 (Me. 1994) (“As a preliminary point, contrary to plaintiff's argument, the defendants need not file notice of a cross appeal in order to raise the timely service issue on appeal. Although the Superior Court rejected the defendants' argument on untimely service, the court discharged the trustees on other grounds. Defendants may now raise the timely service issue to defend the judgment on this alternative ground.”) (citing Marxsen).
Yet in Millien v. Colby College, 2005 ME 66, ¶ 9, 874 A.2d 397 n. 3, [http://www.courts.state.me.us/court_info/opinions/2005_documents/05me66mi.htm] the Court said:
We do not consider Colby's argument that the Superior Court's conclusion that the handbook is not itself a binding contract should be interpreted to mean that there was no contractual relationship between the parties. Colby did not file a cross-appeal challenging the court's finding that “there is a contractual relationship between the plaintiff and the college.” Because Colby did not preserve its challenge to the court's finding regarding contract formation by filing a cross-appeal, we decline to address it.
This language suggests that you have to cross-appeal not just when you want to change a judgment, but whenever you don’t like a particular finding made by a court – even if the ultimate judgment is in your favor.
I must leave it to the learned judiciary to sort this one out. In the meantime, however, the message is clear. If you have any doubt whatsoever, cross-appeal.