November 1, 2016
You won! After hard-fought litigation, the district court issued its judgment in favor of your client. Well … mostly in favor of your client. The district court’s analysis is a little shaky, and there is some language in the judgment that does not go your way. But overall, you got what your client wanted.
The opposing party files a notice of appeal. Must your client likewise appeal in order to challenge those parts of the judgment that are adverse to its interests? The answer is, “it depends.”
Only a party who is aggrieved by a judgment may appeal. NRAP 3A(a). Because the prevailing party below is not considered aggrieved by the judgment, the respondent generally may not bring a cross appeal. Ford v. Showboat Operating Co., 110 Nev. 752, 756, 877 P.2d 546, 548-49 (1994). If you seek to enlarge your client’s rights in the judgment or reduce those of your opponent, however, a cross appeal is necessary. Id.
So, for example, a party may not seek an increase in an attorney fee award absent a cross appeal. Doherty v. Wireliess Broadcasting Sys. Of Sacramento, Inc., 151 F.3d 1129, 1131 (1998). Similarly, without filing a cross appeal, a party may not obtain relief from a legally invalid forfeiture order. U.S. v. Bajakajian, 84 F.3d 334, 338 (9th Cir. 1996). Also, a respondent who failed to appeal those portions of a district court order that enjoined it from pursuing certain legal claims could not challenge those injunctions on appeal. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). Moreover, the Ninth Circuit has held that a prevailing party can cross appeal from an adverse finding that could give rise to collateral estoppel in subsequent litigation. Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984). Failure to file a cross-appeal will result in the appellate court lacking jurisdiction over an issue or contention advanced by the respondent to challenge the appealed-from order. Sierra Creek Ranch, Inc. v. J.I. Case, 97 Nev. 457, 460, 634 P.2d 458, 460 (1981).
To the extent that the respondent disagrees with the district court’s analysis or thinks the district court ruled in its favor for the wrong reason, no cross appeal is allowed. Even without a cross appeal, however, a respondent may “advance any argument in support of the judgment even if the district court rejected or did not consider the argument.” Ford, 110 Nev. at 755, 877 P.2d at 548. The appellate court can affirm a judgment on any grounds supported by the record.
What are the mechanics of a cross appeal? Once one party timely serves and files a notice of appeal, any other party may serve and file a notice of appeal within 14 days thereafter, or within the time otherwise remaining under NRAP 4(a), whichever is longer. NRAP 4(a)(2). An appellate court lacks jurisdiction to entertain an untimely cross-appeal. Mahaffey v. Investor’s Nat’l Sec. Co., 102 Nev. 462, 463, 725 P.2d 1218, 1219 (1986).
Although the subsequent appeal often is referred to as a “cross-appeal,” each appeal is separate and must stand on its own. In other words, a “cross-appeal” cannot be jurisdictionally dependent on any other appeal and must independently satisfy the jurisdictional requirements for an appeal. Ford, 110 Nev. at 756, 877 P.2d at 549. In that regard, the cross appellant must pay the prescribed filing fee and file a docketing statement. NRAP 14(a)(g). Cross-appeals will be filed under the same docket number and calendared and argued with the initial appeal. NRAP 12(a).
The party names in a cross appeal are designated according to NRAP 28.1. The first party to file a notice of appeal is deemed the appellant for all purposes. If opposing parties file notices of appeal on the same day, the plaintiff below is considered the appellant on appeal. However, the parties may agree to modify these designations, or the court may issue an order that does so. NRAP 28.1(b).
NRAP 28.1(c)-(f) set forth the requirements for briefing a cross appeal. When a cross appeal is filed, the opening brief has the same content and length limitations as in any other appeal. The respondent then files a combined answering brief on appeal and opening brief on cross appeal. The appellant files a reply brief on appeal and answering brief on cross appeal. The respondent’s reply brief on cross appeal may only address the issues presented by the cross appeal. Appellate courts will generally schedule a single oral argument for both the appeal and cross appeal. NRAP 34(d).
The decision to cross appeal requires a lawyer to ask, “Does my client want to recover more than the judgment provided or want the opposing party to recover less?” Each judgment should be carefully evaluated with this question in mind.
Debbie Leonard is partner at McDonald Carano Wilson LLP, where her practice focuses on appeals before Nevada’s appellate courts, the Ninth Circuit Court of Appeals and administrative agencies. She served as the 2013-2014 Chair of the State Bar’s Appellate Litigation Section and is Lead Editor of the Nevada Appellate Practice Manual, 2016 edition. She is also a Nevada Supreme Court settlement judge.
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