WHEN SHOULD YOU FILE A CROSS-APPEAL AFTER THE OPPOSING PARTY HAS APPEALED TO THE SUPREME COURT OF NEVADA?

By Micah S. Echols, Esq.

I. INTRODUCTION

You have just completed closing arguments of what turned out to be a very long and drawn-out case with weeks of preparation for the trial. After deliberations, the jury awards your client a substantial amount of money. Weeks later as you are still savoring the victory, you suddenly realize that the case is not over—the opposing party has appealed to the Supreme Court of Nevada. With your pending motion for attorney's fees and costs in the District Court, you may not yet be focused on the appeal, but you should be. The time to file a cross-appeal is jurisdictional, and if you do not take steps to determine whether you should file a cross-appeal, you may be forfeiting your client's rights on appeal. [1] This article will discuss the timing and format of a cross-appeal, the substantive law on cross-appeals, and the changes in the appellate procedures when a cross-appeal is filed.

II. timing and format of a cross-appeal

The time to file a cross-appeal is “within 14 days of the date on which the first notice of appeal was served, or within the time otherwise prescribed by [NRAP] Rule 4(a), whichever period last expires.” [2] In other words, if the opposing party files a notice of appeal immediately after the judgment is entered, you still have the full 30 days to file a cross-appeal, which is calculated from the date of service of the notice of entry of judgment. [3] Likewise, if the opposing party files a notice of appeal on the last possible day to file an appeal, you still have 14 days to file a cross-appeal, which is calculated from the date of service of the opposing party's notice of appeal. [4] Of course, if your case involves post-judgment tolling motions, the time to file a notice of appeal, as well as a cross-appeal, does not begin to run until after the entry of the order disposing of the final post-judgment tolling motion. [5] However, you should take caution to ensure that your post-judgment motion actually has a tolling effect. For example, motions for reconsideration and motion for attorney's fees are not tolling motions. [6] Additionally, you may need to file an appeal or a cross-appeal from the post-judgment orders, whether they are tolling or not. [7]

The format of a cross-appeal is identical to a notice of appeal. [8] In fact, the Supreme Court has noted in various opinions that a “notice of cross-appeal” does not exist. [9] Rather, the Supreme Court will identify a cross-appeal based upon the order and timing of the different notices of appeal. [10] So, to file a cross-appeal, you will still need to prepare a case appeal statement, pay the filing fees, and prepare a docketing statement. [11]

III. substantive law on cross-appeals

In Nevada, the seminal case explaining the law on cross-appeals is Ford v. Showboat Operating Company . [12] In Ford , the District Court granted summary in favor of the employer, dismissing the plaintiff's complaint for intentional infliction of emotional distress and for sexual harassment resulting in constructive discharge. [13] The District Court later amended the judgment and concluded that “outrageous conduct is an issue for the trier of fact which would be for the jury if a jury had been requested,” even though the plaintiff's complaint remained dismissed. [14] The plaintiff and the employer both appealed. [15]

The Supreme Court later issued an order to show cause, questioning whether the employer was an aggrieved party and whether the cross-appeal should be dismissed. [16] The employer argued that according to Alamo Irrigation Company v. United States , [17] it was required to file a cross-appeal to challenge on appeal the District Court's conclusion that outrageous conduct is an issue for the trier of fact. [18] However, the Supreme Court ultimately dismissed the employer's cross-appeal and found that the employer did not need to file a cross-appeal in order to preserve the issue for appeal. [19] The Supreme Court overruled Alamo Irrigation Company and clarified that a respondent that is not aggrieved by a judgment does not need to appeal from the judgment in order to raise arguments in support of the judgment not necessarily accepted by the District Court. [20] The Supreme Court also explained that a respondent must file a cross-appeal when he is aggrieved by the judgment and aims to enlarge his own rights in the judgment or lessen the rights of his adversary. [21] So, the employer did not need to file a cross-appeal since the end result was to obtain an affirmance of the District Court's order granting summary judgment.

The Supreme Court of Nevada has consistently applied this cross-appeal rule. For example, in Langevin v. York , [22] the Supreme Court refused to consider a respondent's contention that the District Court erred in awarding a trust deed to the appealing defendant, since the respondent had not filed a cross-appeal. [23] Similarly, in Paul v. Imperial Palace, Inc. , [24] the Supreme Court allowed a respondent to challenge the admissibility of certain statements given at trial in support of the District Court's order granting new trial, even though the District Court did not base its order on these statements. [25] More recently, the Supreme Court has also explained that a respondent cannot challenge the amount of attorney's fees and costs awarded by the District Court without filing a cross-appeal. [26] In summary, if you plan to ask the Supreme Court for anything more than what your client was awarded in the District Court, you should file a cross-appeal. Otherwise, there is no need to file a cross-appeal.

IV. changes in the appellate procedures

Once you decide that you need to file a cross-appeal to preserve your client's rights, you should be aware of some changes in the appellate procedures. Ordinarily, the appealing party, whether plaintiff or defendant in the District Court, becomes the appellant in the Supreme Court. However, when a cross-appeal is filed, the plaintiff in the District Court will automatically become the appellant unless the parties agree otherwise or if the Supreme Court otherwise orders. [27] As a practical matter, the appellant usually has more control over the briefing since he can file his opening brief early, and he can initially select what documents to include in his appendix. [28] Also, if you are representing the appellant, you will have the opportunity at oral argument to open and conclude the argument. [29] Nevertheless, the filing of a cross-appeal will also make the appeal more expensive since normally an appellant bears the cost of preparing the transcripts and appendix, but when a cross-appeal is involved, the cost must be borne equally by the appealing parties. [30] Additionally, when a cross-appeal is filed, there is more briefing required which makes the appeal not only more expensive but also lengthier, as long as no party waives the right to file a reply brief. [31] While the normal briefing consists of (1) appellant's opening brief; (2) respondent's answering brief; and (3) appellant's reply brief, a cross-appeal will require (1) appellant/cross-respondent's opening brief; (2) respondent/cross-appellant's answering brief and opening brief (combined as a single brief); (3) appellant/cross-respondent's reply brief and answering brief; and (4) respondent/cross-appellant's reply brief. [32] Therefore, before you file a cross-appeal, you should be certain that you actually need a cross-appeal to preserve your client's rights, and you should also be aware of the increased costs and increased length of the appeal due to the cross-appeal.

V. conclusion

The cross-appeal is an important procedural tool that may be necessary to preserve your client's rights on appeal, even though your client is technically the prevailing party in the District Court. When deciding whether you should file a cross-appeal, the basic test is to determine whether your client wants to ask the Supreme Court for something more than the amount of the judgment and the amount of attorney's fees and costs awarded. If your client has not received everything he wanted in the District Court, you should consider filing a cross-appeal. However, you should also advise your client that a cross-appeal will almost always make the appeal more expensive and lengthier.

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[1] See Mahaffey v. Investor's Nat'l Sec. Co. , 102 Nev. 462, 463, 725 P.2d 1218, 1218 (1986) (stating that the timely filing of a cross-appeal is jurisdictional); see also Schwartz v. State , 111 Nev. 998, 1001, 900 P.2d 939, 941, n. 1 (1995) (acknowledging that the Supreme Court will assume that the District Court reached a proper legal conclusion when the District Court's decision is not challenged by a cross-appeal).

[2] NRAP 4(a )( 2).

[3] See NRAP 4(a )( 1).

[4] See NRAP 4(a )( 2).

[5] See NRAP 4(a )( 4).

[6] See id. ; see also Chapman Indus. v. United Ins. Co. of Am. , 110 Nev. 454, 458, 874 P.2d 739, 741 (1994) (stating that a motion for reconsideration is not a tolling motion) (citation omitted); see also Thomas v. City of North Las Vegas , 127 P.3d 1057, n. 5 (Nev. 2006) (stating that a motion for attorney's fees is considered a special order entered after judgment).

[7] See, e.g. , NRAP 4(a )( 5).

[8] See generally NRAP 3 & NRAP 4(a).

[9] See, e.g. , KDI Sylvan Pools, Inc. v. Workman , 107 Nev. 340, 342, 810 P.2d 1217, 1219, n. 2 (1991) (“We note that the Nevada Rules of Appellate Procedure do not provide for the filing of a notice of cross-appeal. Instead, a cross-appeal arises by operation of law when multiple, opposing parties file notices of appeal.”) ( citations omitted).

[10] Id. (citing NRAP 3(a); NRAP 4(a )( 1) & NRAP 28(h)).

[11] See NRAP 3(a )( 1); NRAP 3(f) & NRAP 14(a).

[12] 110 Nev. 752, 877 P.2d 546 (1994).

[13] Id. ; 110 Nev. at 753, 877 P.2d at 547.

[14] Id. ; 110 Nev. at 753–754, 877 P.2d at 547 .

[15] Id. ; 110 Nev. at 754, 877 P.2d at 547.

[16] Id.

[17] 81 Nev. 390, 404 P.2d 5 (1965).

[18] Ford , 110 Nev. at 754, 877 P.2d at 548 .

[19] Id. ; 110 Nev. at 757, 877 P.2d at 550, n. 5.

[20] Id. ; 110 Nev. at 755, 877 P.2d at 548.

[21] Id.

[22] 111 Nev. 1481, 907 P.2d 981 (1995).

[23] Id. ; 111 Nev. at 1483, 907 P.2d at 982, n. 2 .

[24] 111 Nev. 1544, 908 P.2d 226 (1995).

[25] Id. ; 111 Nev. at 1549, 908 P.2d at 229 .

[26] See Miller v. Wilfong , 121 Nev. 619 , , 119 P.3d 727, 731, n. 15 (2005).

[27] See NRAP 28(h).

[28] See NRAP 31(a )( 1) & NRAP 30(a)–(b).

[29] NRAP 34(c).

[30] See NRAP 9(a) & NRAP 30(h).

[31] See NRAP 28(c).

[32] See generally NRAP 28.