How to Handle Cross-Appeals
D. Todd Smith September 13, 2013
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
2
TRAP 25.1(c)
• Since 1997, “a party who seeks to alter the trial
court’...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
3
Why is TRAP 25.1(c) Significant?
• Under pre-1997 rules, a “cross-point...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
4
Why is TRAP 25.1(c) Significant?
Consequence of appellee’s failure to f...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
5
Overview
Assuming opposition has timely filed a notice of
appeal:
• Wal...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
6
Determining Whether to Cross-Appeal
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
7
Determining Whether to Cross-Appeal
• “Post-trial recap”—if result was ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
8
Determining Whether to Cross-Appeal
Close calls that should have gone t...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
9
Determining Whether to Cross-Appeal
Close calls that should have gone t...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
10
Determining Whether to Cross-Appeal
When?
• Can always file within ord...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
11
Pursuing a Cross-Appeal Conditionally
• Why? Appellee likes the result...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
12
Pursuing a Cross-Appeal Conditionally
• Although TRAPs don’t expressly...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
13
Issues and Problems Arising in Cross-Appeals
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
14
Complications in Handling Cross-Appeals
• Some smaller ones and some b...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
15
Complications in Handling Cross-Appeals
Does the cross-appellant have ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
16
Complications in Handling Cross-Appeals
Does the cross-appellant have ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
17
Complications in Handling Cross-Appeals
Does the cross-appellant have ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
18
Complications in Handling Cross-Appeals
Parallel briefing tracks
• Eve...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
19
Complications in Handling Cross-Appeals
Possible insufficiency of the ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
20
Complications in Handling Cross-Appeals
Rebuttal at oral argument
• Un...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
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Potential Solutions to the
More Significant Problems
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
22
Potential Solutions
Short term = motion practice
• As mentioned, may w...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
23
Potential Solutions
Form briefing motion attached to paper as Exhibit ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
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Potential Solutions
Form briefing motion attached to paper as Exhibit B
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
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Potential Solutions
Long term = TRAP amendment
• Impractical to think ...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
26
Possible Solutions
Templates already exist for resolving briefing and
...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
27
Possible Solutions
FRAP 28.1
• 1st party to file a NOA is “the appella...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
28
Possible Solutions
Dallas Court of Appeals, Local Rule 10
• Specifical...
9/14/2013 Copyright © 2013 Smith Law Group, P.C.
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Conclusion
• Cross-appeals increase procedural complexity
and the reso...
How to Handle Cross-Appeals
D. Todd Smith September 13, 2013
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2013 09-13 How to Handle Cross-Appeals

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D. Todd Smith's presentation on cross-appeals at the 2013 Advanced Civil Appellate Practice Course, sponsored by TexasBarCLE and the State Bar Appellate Section

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2013 09-13 How to Handle Cross-Appeals

  1. 1. How to Handle Cross-Appeals D. Todd Smith September 13, 2013
  2. 2. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 2 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?
  3. 3. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 3 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
  4. 4. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 4 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
  5. 5. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 5 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
  6. 6. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 6 Determining Whether to Cross-Appeal
  7. 7. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 7 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
  8. 8. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 8 Determining Whether to Cross-Appeal 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.
  9. 9. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 9 Determining Whether to Cross-Appeal 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.
  10. 10. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 10 Determining Whether to Cross-Appeal 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
  11. 11. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 11 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
  12. 12. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 12 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
  13. 13. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 13 Issues and Problems Arising in Cross-Appeals
  14. 14. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 14 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
  15. 15. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 15 Complications in Handling Cross-Appeals 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
  16. 16. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 16 Complications in Handling Cross-Appeals 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
  17. 17. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 17 Complications in Handling Cross-Appeals 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)
  18. 18. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 18 Complications in Handling Cross-Appeals 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
  19. 19. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 19 Complications in Handling Cross-Appeals 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
  20. 20. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 20 Complications in Handling Cross-Appeals 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
  21. 21. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 21 Potential Solutions to the More Significant Problems
  22. 22. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 22 Potential Solutions Short term = motion practice • As mentioned, may work for oral argument time and rebuttal • Generally works very well for briefing issues 
  23. 23. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 23 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
  24. 24. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 24 Potential Solutions Form briefing motion attached to paper as Exhibit B
  25. 25. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 25 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
  26. 26. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 26 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
  27. 27. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 27 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
  28. 28. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 28 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
  29. 29. 9/14/2013 Copyright © 2013 Smith Law Group, P.C. 29 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
  30. 30. How to Handle Cross-Appeals D. Todd Smith September 13, 2013

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