One preservation issue that seems to receive less attention than it should is the potential need for a cross-appeal. An appellee/respondent who is not entirely successful in the trial court may challenge an unfavorable portion of a final judgment or order by filing a cross-appeal. Indeed, the cross-appeal is typically the sole means that an appellee/respondent has to request relief from the order or judgment appealed by the appellant. Thus, it is the method for the partial or nominal winner below to challenge an unfavorable portion of an otherwise favorable final judgment or order.
One should also remember that even a favorable judgment may include adverse interlocutory rulings, such as the erroneous admission or exclusion of significant evidence. A cross-appeal accordingly may be necessary to correct the error for purposes of any new trial in the event that the appellate court reverses a favorable final judgment.
The cross-appeal should be distinguished however, from the right of the appellee/respondent to assert other rationales on appeal that were properly preserved below, but not relied on by the trial court, in support of the final judgment or order—i.e., a “right for other reasons” argument. In many situations—without filing a cross-appeal—an appellee/respondent is free to make a “right for other reasons” argument to defend a favorable final judgment or order on appeal (but always be sure to double-check the law in the particular jurisdiction).
Preserve Poway v. City of Poway, 245 Cal. App. 4th 560 (Cal. 4th DCA 2016), provides a good example of when a cross-appeal is necessary. There, a community-interest group was successful at the trial level in challenging a municipality’s approval of a development project (converting a long-established, public horse farm into a private community of large-lot homes, which included their own private stables). The trial court set aside approval of the proposed development under the California Environmental Quality Act (CEQA) on the grounds that it was out of character when compared to the surrounding community.
On appeal, the municipality successfully contended that this was an improper basis to set aside the approval. The appellee community-interest group responded that the trial court’s decision to set aside the approval was also proper because (1) an environmental-impact report was required to study fire-safety issues before approval could take place, and (2) the existing proposal failed to properly address the development’s impact on wetlands and failed to include sufficient mitigation measures.
The problem with the appellee’s arguments, however, was that the trial court had not simply avoided relying on these additional rationales; instead, it had directly rejected them. California’s Fourth District Court of Appeal held that a cross-appeal accordingly was required for the appellee to raise these arguments in disagreement with the trial court’s final order. In the process, it reasoned:
As a general matter, a respondent[/appellee] who has not appealed from the judgment may not urge error on appeal. To obtain affirmative relief by appeal, respondents[/appellees] must themselves file a notice of appeal and become cross-appellants.
Preserve Poway, 245 Cal. App. 4th at 585 (internal citations and quotation marks omitted). On this basis, the appellate court held that these arguments were unpreserved and forfeited on appeal.
- When an appellee/respondent wishes to contend on appeal that the trial court erred—including in rejecting additional reasons that support the final order or judgment on appeal—it should file a cross-appeal to preserve such contentions for review by the appellate court.
If you represent the appellee/respondent and disagree with an aspect of the final order or judgment on appeal or a significant interlocutory ruling that has merged into an otherwise favorable final judgment or order, consider timely filing a cross-appeal so that the appellate court may correct the asserted error.