2013 09-13 how to handle cross-appeals

How to Handle Cross-AppealsD. Todd Smith September 13, 2013

04/13/2023 Copyright © 2013 Smith Law Group, P.C.

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TRAP 25.1(c)

• Since 1997, “a party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.”

• Sounds simple enough, right?


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Why is TRAP 25.1(c) Significant?

• Under pre-1997 rules, a “cross-point” in appellee’s brief was sufficient to assail the judgment

• Now, it’s not—although still a valid way of asserting independent grounds for affirmance

• To alter the judgment or increase appellee’s relief, appellee must bring its own appeal


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Why is TRAP 25.1(c) Significant?

Consequence of appellee’s failure to file its own notice of appeal:

• Appellate court cannot give appellee more than what it got in the trial court absent “just cause”

• Almost no cases find just cause—it’s just better not to go there—and none explicate a standard


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Overview

Assuming opposition has timely filed a notice of appeal:

• Walk through what goes into the decision to cross-appeal

• Identify some unique issues and problems TRAP 25.1(c) creates

• Look at possible solutions


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Determining Whether to Cross-Appeal


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Determining Whether to Cross-Appeal• “Post-trial recap”—if result was less than a

complete victory—to determine whether to:– file error-preserving motions– file a request for FOF/COL

• Ask whether issues considered during recap could be asserted in a stand-alone appeal

• If so, or if it’s a close call, best practice is to file a notice of cross-appeal to preserve client’s rights


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Close calls that should have gone the other way:

• Error in applying 4-year statute of limitations, rather than 2-year statute, even though the CtApps were split and SCOTX determined that a 2-year statute applied while appeal was pending

• Error in failing to rescind a 1/5 mineral interest conveyed in general deed, although judgment voided separate mineral deed.


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Close calls that should have gone the other way:

• Failure to disqualify a law firm representing another party in the case.

• Failure to grant a judgment notwithstanding the verdict finding the appellant’s employee negligent as a matter of law.


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When?

• Can always file within ordinary NOA deadline

• Alternatively, within 14 days of another timely NOA

• Implied-extension rule applies—cross-NOA may be deemed timely if filed within 15 days of deadline with reasonable explanation


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Pursuing a Cross-Appeal Conditionally

• Why? Appellee likes the result for the most part, but wants to preserve its arguments for a better result just in case

• How? Include express language in notice of cross-appeal conditioning review of cross-issues on CtApp granting appellant relief in its appeal


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Pursuing a Cross-Appeal Conditionally

• Although TRAPs don’t expressly authorize conditional cross-appeals, CtApps generally honor conditions without questioning

• But a few cases—only one post-1997—hold that conditional cross-issues are not allowed

• This makes little sense because SCOTX allows conditional cross-petitions for review without express TRAP authority


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Issues and Problems Arising in Cross-Appeals


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Complications in Handling Cross-Appeals

• Some smaller ones and some bigger ones

• All tie back to the fact that TRAP 25.1(c) makes every party an appellant and an appellee in the same case


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Does the cross-appellant have to pay a $175 docketing fee?

• Enabling statute says fee must be paid “for cases appealed to and filed in the [CtApp]”

• Is a cross-appeal a “case”?

• Just pay it—like “just cause,” you don’t want to have to litigate the issue to preserve a cross-appeal


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Does the cross-appellant have to file a docketing statement?

• TRAP 32.1 says “the appellant” must file one “promptly”

• Just file it—a cross-appellant is an appellant +– helps make sure your cross-appeal is correctly noted– though somewhat duplicative, tells the CtApp some

things about your cross-appeal


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Does the cross-appellant have to pay for part of the record?

• TRAPs are silent, so—– appellant who suspects a cross-appeal is forthcoming

may approach opposition about sharing record costs – a cross-appellant might avoid paying by hanging back

until appellant’s record requests are in and paid for, as long as the cross-notice is timely

• Might be addressed post-appeal by motion to apportion costs stating good cause (TRAP 43.4)


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Parallel briefing tracks

• Every cross-appeal will involve at least two appellants who are not aligned

• Therefore, the default will be no less than two independent sets of briefs in every cross-appeal

• As many as six briefs in a two-party case


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Possible insufficiency of the new word-count limits

• As of 12/1/12—– 15,000 for each principal brief (appellant/appellee)– 7,500 for appellant’s reply brief– 27,000 aggregate for each party

• Aggregate limit gives some breathing room, but an additional 4,500 words may not be sufficient


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Rebuttal at oral argument

• Under TRAP 39.2, “[t]he appellant must be allowed to conclude the argument”

• CtApp may not automatically allocate rebuttal time to cross-appellant

• But might if you file a motion or just ask for it


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Potential Solutions to theMore Significant Problems


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Potential Solutions

Short term = motion practice

• As mentioned, may work for oral argument time and rebuttal

• Generally works very well for briefing issues


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Potential Solutions

Form briefing motion attached to paper as Exhibit B

• Agree to present cross-issues in appellee’s brief

• Agree to word counts and deadlines

• Benefits both sides because you cut the total number of briefs from 6 to 4

• CtApps have been very receptive


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Potential Solutions

Form briefing motion attached to paper as Exhibit B


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Potential Solutions

Long term = TRAP amendment

• Impractical to think that all of these issues could be addressed by rule changes

• But briefing and word-count issues should be


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Possible Solutions

Templates already exist for resolving briefing and word-count issues by rule change

• FRAP 28.1

• Dallas Court of Appeals, Local Rule 10


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Possible Solutions

FRAP 28.1

• 1st party to file a NOA is “the appellant” for briefing purposes

• Limits number of briefs in cross-appeals to 4

• Delineates them and sets type-volume (word count) limits for each

• Builds in a briefing schedule


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Possible Solutions

Dallas Court of Appeals, Local Rule 10

• Specifically identifies the 4 briefs to be filed

• Not yet amended to incorporate word counts, but sets aggregate page limits higher than what former TRAP 38.4 said (125 v. 90)

• Builds in a briefing schedule


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Conclusion

• Cross-appeals increase procedural complexity and the resources expended

• CtApps are starting to take matters into their own hands—14th is looking at a local rule

• FRAPs have long recognized the wisdom in a rule that makes cross-appeals more efficient

• TRAPs should be amended to do the same

How to Handle Cross-AppealsD. Todd Smith September 13, 2013

2013 09-13 how to handle cross-appeals

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