Handle Cross-Appeals

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’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

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
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
Determining Whether to Cross-Appeal

7
• “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
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
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
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

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

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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

15
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
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
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 the
More 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

Handle Cross-Appeals

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Handle Cross-Appeals