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Which Orders Can Be Included In A Cross-Appeal?

One sentence of Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: “If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within ten days after the first notice of appeal was served on such party.”

If one party appeals from a final judgment, what can be included in the other party’s cross-notice of appeal? Any interlocutory order? Or only the orders identified by the original appellant?

According to the Court of Appeals, the answer is the latter. In Slaughter v. Slaughter, a divorce proceeding, the trial court entered three different orders: Order 1 on 31 March 2016, Order 2 the next day on 1 April 2016, and Order 3 also on 1 April 2016. Within thirty days, the husband filed a notice of appeal from Order 1 and Order 2. Within ten days of the notice of appeal (but 32 days after entry of the orders), the wife filed a notice of cross-appeal from Order 2 and Order 3.

In a unanimous, published opinion, the Court of Appeals on Tuesday held that the cross-appeal from Order 3 was untimely. The Court relied on a 1990 opinion, which held that the cross-appeal provision in Rule 3(c) “merely contemplates an additional, extended time period for a response only from other parties to that same appeal.” Surratt v. Newton, 99 N.C. App. 396, 402, 393 S.E.2d 554, 557 (1990) (emphasis added). Because the husband did not seek to appeal from Order 3, the wife’s cross-appeal from that order could not be the “same appeal.”

Thus, the wife should have filed her own notice of appeal within thirty days of the entry of Order 3. Because she did not do so, the trial court improperly denied the husband’s motion to dismiss the cross-appeal.

The Court of Appeals “strongly admonish[ed] parties who are considering appeal to act promptly to preserve their rights, even if they subsequently choose to voluntarily dismiss their appeals, rather than to rely on the magnanimity of opposing counsel.” This admonishment could be interpreted as being at odds with the Commentary to the Appellate Rules (adopted by the Supreme Court in 1975), which explains that the cross-appeal provision

avoids any further need for the so-called “protective” appeal by a party who is content to abide the judgment unless some other party takes appeal, but who wants to go up as an appellant if this transpires, and who therefore has been forced to give notice of appeal against the possibility that another party will take appeal at the last moment. This awkwardness is avoided by the provision that the timely taking of appeal by any party automatically gives all other parties 10 additional days from that time to note appeal.

So what do you think? Is the holding in Slaughter inconsistent with the intent of the cross-appeal rule? Or is the decision, as the Court stated, “firmly rooted in the interests of fairness” because it allows each party to decide whether and when to appeal?

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7 Responses to "Which Orders Can Be Included In A Cross-Appeal?"

  • Beth Scherer
    July 19, 2017 - 1:59 pm Reply

    This opinion seems inconsistent with Appellate Rule 3’s stated purpose in adopting the cross-appeal rule–to avoid “any further need for the so called ‘protective’ appeal by a party who is content to abide the judgment unless some other party takes appeal.”

    Do we really want to encourage parties to file a “protective” notice of appeal over minor disagreements with the trial court’s judgment? Won’t this encourage more appeals? If a protective notice of appeal is filed, it may push the other party to appeal as well–even if they were on the fence about it before.

    It also would reward gamesmanship. For example, let’s suppose the trial court grants summary judgment to defendant, but denies defendant’s requests for $2000 in attorneys’ fees based on plaintiff’s conduct in the summary judgment proceedings. At the plaintiff’s suggestion, the trial court puts its rulings (issued on the same day) in two separate orders. Then, plaintiff strategically waits to file and serve its summary judgment notice of appeal until the 30th day–all in an effort to keep the defendant from seeking appellate review of the sanctions order when plaintiff appeals.

    Under the new Slaughter‘s rule, the defendant’s cross-appeal would have be permissible if the trial judge had merely resolved its sanction and summary judgment rulings in a single document.

    • Matt Leerberg
      July 19, 2017 - 3:22 pm Reply

      True, Beth. But isn’t there an opportunity for gamesmanship either way? In your hypothetical, suppose instead that defendant requested $100K in attorneys’ fees, but only got $20,000. Plaintiff is inclined to “live with” that $20K award and not waste money on appeal challenging it, since it would be reviewed for abuse of discretion anyway. Plaintiff just appeals from the SJ order.

      Under your reading of the rule, defendant can then appeal from the fees’ order within 10 days thereafter, seeking the full $100K. Plaintiff thinks, well, if we are going to be arguing about fees, I would like to argue that $0 should have been awarded. But Plaintiff is out of time to “cross-cross-appeal” under your reading, right?

      • Beth Scherer
        July 20, 2017 - 9:03 am Reply

        Matt,

        Agree that there is always a possibility of gamesmanship but your scenario is less of an issue. If plaintiff is appealing already, it would likely include the appeal of the attorneys fees award in the same notice of appeal. If the defendant does not cross-appeal, plaintiff can abandon those issues on appeal by not briefing them. The costs to the plaintiff of adding an additional order to a notice of appeal being filed already is minimal.

        My scenario involves a party that does not want to appeal at all being forced to file a protective NOA. And of course, the other troubling gamesmanship issue involves plaintiff purposefully separating the two trial court rulings to defeat defendant’s ability to cross-appeal.

        • Patrick Kane
          July 20, 2017 - 3:44 pm Reply

          I think it could be argued that this ruling reduces the number of appeals, in particular the appeals that you are referencing here-those where the party can live with the order and wouldn’t otherwise appeal, but does so just because the case is going to the COA anyways. If a party is not overly interested in filing an appeal, would it really be inclined to file a protective appeal? It seems like Slaughter mainly forecloses appeals that wouldn’t otherwise have been taken.

          • Beth Scherer
            July 21, 2017 - 9:57 am Reply

            I think the comments to Rule 3’s adoption of the cross-appeal rule indicate that these protective NOAs were happening before the adoption of Rule 3. Note this is not going to reduce the number of appeals. The appeal will go forward regardless of the Slaughter rule. It’s simply the number of issues that are decided in that appeal.

  • Jonathan McGirt
    July 19, 2017 - 5:45 pm Reply

    Not mentioned in the opinion: Pursuant to G.S. 50-19.1, a prospective appellant in a family law case is permitted to wait to appeal until all orders become “final.” If all orders entered prior to the “final” order are technically interlocutory, then cross-appellant should also be able to file a cross-appeal from any of the orders that were entered prior to the “final” order, whether the first appellant has appealed from any of those other orders or not. The prospective cross-appellant would not know that this part of G.S. 50-19.1 applied until the “final” order had been entered (or possibly, served). Furthermore, a cross-appeal might be worthwhile when a direct, initial appeal might not be. Thus, the time for filing notice of cross-appeal would have to be at the LATEST of either: [a] the time set by N.C. R. App. P. 3(c)(1) (measured from the date of entry of the “final” order), or [b] the time set by N.C. R. App. P. 3(c)(2) (measured from the date of service of the “final” order), or [c] within 10 days of the filing of the first appeal, whichever applies. Prior to the enactment of G.S. 50-19.1, the claims giving rise to the orders prior to the “final” order were deemed to be so interrelated with all of the other claims that no appeal from any order on any claim could proceed before all claims were adjudicated. (That theoretical framework still stands unaffected by the operation of G.S. 50-19.1, which simply provides an alternate jurisdictional basis for some interlocutory appeals.) If the claims are deemed to be so interrelated for that purpose, then they should likewise be deemed to be so interrelated as to allow appeal from any prior order in the action, including by application of the time set in the 10-day cross-appeal rule, regardless of what the first appellant has done. Otherwise, by filing on Day 30, the first appellant controls the scope of the cross-appeal.

  • Beth Scherer
    September 12, 2017 - 4:00 pm Reply

    Slaughter petition for rehearing was denied by the panel on September 12, 2017.

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