PRACTICAL APPEALS ADVICE - Part Five - PREPARATORY STEPS TO THE APPEAL (CROSS-APPEALS)

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in August, 2006

Parts Three and Four in this series of articles discussed the requirements for filing motions for reconsideration and post-judgment motions in civil and criminal cases in preparation for filing the notice of appeal. This part describes equivalent requirements for filing cross appeals in both civil and criminal cases.

MOTIONS FOR RECONSIDERATION & POST-JUDGMENT MOTIONS IN CROSS-APPEALS

A. WHAT IS A CROSS-APPEAL?

A cross-appeal differs from an initial appeal in the timing of the filing of a notice of appeal, but otherwise resembles the first appeal in all other substantive ways. In the civil context, a cross-appeal may be filed where more than one party has been adversely affected by a judgment. For example, where the defendant files a counter-claim, the judgment may simultaneously grant relief to one or more parties and against the same or different parties. Since this creates a situation where more than one party has been adversely affected by the judgment, each side may want to appeal different aspects of the same judgment.1 Likewise, in criminal cases, the State may want to cross-appeal on the basis that the sentence was void where the defendant's initial appeal challenges his criminal conviction. In these situations, the contentions of all appellants are brought before the Appellate Court in one appeal.

B. APPEALABILITY & STATUS AS APPELLEE

The restriction of appellate review to appealable orders is jurisdictional in nature.2 Consequently, a cross-appeal must be based upon an appealable order to the same extent as any other direct appeal.3 Another way of expressing this principle is that a cross-appeal my not be used to enlarge the jurisdiction of the reviewing court. If the initial appellant seeks review of an appealable order, this only entitles the cross-appellant to review orders of the circuit court that are similarly independently appealable.4 Examples of orders that may not be challenged on cross-appeal in civil cases are those granting or denying motions respecting discovery, granting and denying motions in limine, and rulings on motions to continue the trial date.5

You may protest, "How can I uphold my judgment in the trial court if I cannot cross-appeal?" This question confuses the concept of a cross-appeal with the ability to defend the judgment as the appellee. Illinois law consistently holds that the appellee (the person who obtained a favorable judgment in the circuit court) may sustain the judgment on any basis that appears in the record, even if the precise argument advanced on appeal was not presented to the trial judge!6 You may also advance an argument presented at a hearing whose outcome is not independently appealable, for example, where the court denied your motion to dismiss.7 Therefore, as long as you developed an adequate factual record in the lower court, you can marshal those facts on appeal to sustain your favorable judgment without filing any cross-appeal. Once again, a cross-appeal is only necessary when some adverse ruling has been entered against you.

Thus, if you prevailed on all issues in the trial court, you need only consider the question of appealability as it pertains to the order or judgment that your opponent seeks to appeal. If the initial appellant has not properly preserved the right to appeal, you can defend your favorable judgment by seeking dismissal of the appeal, without ever considering the need for a cross-appeal.

C. CROSS-APPEALS RELATING TO CIVIL PRE-TRIAL JUDGMENTS & INTERLOCUTORY ORDERS

The same rules applicable to the initial civil appeal govern whether the cross-appellant must file a post-judgment motion. As noted in Part Three, the case law apparently holds that litigants are not required to file a motion challenging a pre-trial judgment before taking an appeal. As an example, a post-trial motion is not required in order to preserve a claim of error in the granting of a motion for summary judgment as the basis for a cross-appeal.8 But I still do not retreat from my repetitive, whining advice that you should just do it!

Just to prove that I am whining for good reason, the case law complicates the question of cross-appeals with reference to preliminary or interlocutory orders. As I noted in section B, you must be adversely affected by the judgment in order to cross-appeal. But what if you were adversely affected by a preliminary, non-appealable order in the case, followed by success on the final judgment? The cases rule that cross-appeals may be taken from preliminary or interlocutory orders that were litigated as procedural steps leading to the entry of the judgment.9

One example of preliminary, non-appealable orders becoming appealable following the entry of a final judgment is the decision in Handley v. Unarco Industries, Inc., 124 Ill.App.3d 56 (4th Dist., 1984). In Handley the trial court disposed of all the plaintiff's claims in the suit by granting the defendant's motion for summary judgment. In a previous, non-final ruling, the court denied the defense motion to dismiss. Since the summary judgment resolved all pending issues for or against all parties, the defendant properly cross-appealed the interlocutory denial of its motion to dismiss.10

D. CROSS-APPEALS RELATING TO CRIMINAL INTERLOCUTORY ORDERS

I find it difficult to picture the occurrence of a cross-appeal in a criminal case based on an interlocutory order. First, the ability to appeal interlocutory orders in criminal prosecutions is limited to just a few situations, both for the State and the defense.11 Secondly, rulings in criminal cases invariably follow a sequence that independently addresses prosecution and defense issues touching on potential interlocutory appeals. For example, a ruling suppressing evidence normally occurs independently of an interlocutory order denying a defense motion to dismiss based on double jeopardy. In the unlikely event that a judge would simultaneously enter orders appealable by both parties on an interlocutory basis, you could actually lose the right the file your appeal if you dilly-dally with a motion to reconsider.12

E. NECESSITY OF POST-JUDGMENT MOTIONS FOR CROSS-APPEALS IN CIVIL CASES

As discussed in Part Three of this series (paragraph C), post-judgment motions are not required following bench trials. Since preservation of error for cross-appeals is treated in the same fashion as for initial appeals, you are not required to file such a motion before filing a cross-appeal in a bench case (but, of course, you should).

The same general rule applies to the requirement to file post-judgment motions in jury cases for cross-appeals as for initial appeals. The failure to file a post-trial motion in a civil jury case will waive the right to cross-appeal any issue.13 The exceptions that excuse this requirement involve situations where the court grants a motion for directed verdict or where the challenged order was entered after the discharge of the jury.14 I whine again: "Do you really want to keep these fine distinctions in mind or research them under pressure? Wouldn't you rather just prepare the motion and know you are safe?"

"But," you may retort, "how will I have time to file and present such a motion if I do not intend to cross-appeal unless my opponent files her own initial appeal? Once the court rules on the post-trial motion of the opposition, won't I run out of time to file my own post-trial motion before the deadline passes for filing a cross-appeal?"

The short answer to your questions is that you should at least contemplate the filing of a cross-appeal once you receive your opponent's post-trial motion if you were the unhappy recipient of some adverse ruling. Here is where my whining can pay off again: You discipline yourself to anticipate the possibility that you will need to advance your arguments in the Appellate Court in the same proceeding with the initial appellant. Also, if the court surprises you with an order that reverses your success at trial, you then have an additional 30 days to file your own post-trial motion.15

F. NECESSITY OF POST-JUDGMENT MOTIONS FOR CROSS-APPEALS IN CRIMINAL CASES

Defendants in criminal cases, must file both post-trial and post-sentencing motions to preserve error on appeal.16 Of course, the defense normally has an incentive to file an appeal, rather than only contemplating a response to a State appeal. However, the State may file a cross-appeal from the final judgment in order to challenge a sentence it considers void because it fails to conform to statutory requirements. Oddly enough, the Appellate Court has jurisdiction to correct a void sentence at any time, even without the issue being raised in a cross-appeal.17 While it may be a good idea for the State to file a post-sentencing motion, the statute only requires the defense to do so.18

G. TIMELINESS OF POST-JUDGMENT MOTIONS IN CROSS-APPEALS

Supreme Court Rule 303(a)(3) governs the timing of filing cross-appeals in civil cases. If you hesitated to file your own appeal until your opponent made the first move, then the rule grants the cross-appellant 10 days following service of the initial notice of appeal to file the notice of cross-appeal. Alternatively, the cross-appeal can be filed either (1) within 30 days from the entry of the judgment or order being appealed or (2) within 30 days of the entry of the order disposing of the last pending post-judgment motion. The latest of these three dates is the final deadline for filing the cross-appeal.19

However, if you wait for your opponent to file first, you will only get an additional 10 days to file your own notice if the initial appeal was filed in a timely fashion. In other words, if your opponent is late in filing his own notice, then your cross-appeal will not be timely filed either.

H. SUFFICIENCY OF POST-JUDGMENT MOTIONS IN CROSS-APPEALS

Again, the same general rules apply to cross-appeals as in the case of initial appeals. Therefore, in civil cases, the motion must be directed against the judgment. Post-judgment motions in civil, non-jury cases need not be specific, but only need to request one of the types of relief mentioned in the governing statute. By contrast, specificity is required in civil jury cases.20

In criminal cases, the post-judgment motion must be specific. However, the case law allows some play in the joints where claims are articulated in the trial court and the post-trial motion only makes reference to them in a general way, rather than reiterating the precise details of the claims of error.21

I. SUCCESSIVE POST-JUDGMENT MOTIONS IN CROSS-APPEALS

In both civil and criminal cases, the filing of successive post-judgment motions does not toll the 30-day time limit for filing an appeal.22 Rule 274 provides the inevitable exception for civil cases, so that a successive motion may be filed where the trial judge modifies the initial judgment or enters a different judgment that adversely affects your client's interests.

My next article will discuss the steps you need to take to perfect the appeal after the proceedings in the trial court finally conclude.

Footnotes

1. But a cross-appeal is not appropriate unless a portion of the judgment is adverse to the cross-appellant. Keep reading; also see Hampton v. Cashmore, 265 Ill.App.3d 23 (2nd Dist., 1994)

2. Sarkissian v. Chicago Board of Education, 201 Ill.2d 95 (2002)

3. Please review my comments on appealability in paragraph A in each of the preceding two articles.

4. People v. Farmer, 165 Ill.2d 194 (1995)

5. Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill.App.3d 528 (1st Dist., 1999)

6. However, you cannot raise an entirely new defense on appeal that was not presented below. Village of Arlington Heights v. National Bank of Austin, 53 Ill.App.3d 917 (1st Dist., 1977) For the same rule in criminal cases, see People v. Johnson, 208 Ill.2d 118 (2003).

7. Denis v. P & L Campbell, Inc., 348 Ill.App.3d 391 (5th Dist., 2004)

8. Mt. Zion State Bank & Trust v. Central Illinois Annual Conference, 198 Ill.App.3d 881 (4th Dist., 1990)

9. Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill.App.3d 528 (1st Dist., 1999)

10. Also see People ex re. Scott v. Silverstein, 87 Ill.2d 167 (1981)

11. See Supreme Court Rule 604

12. See "Double Opportunity to Appeal Double Jeopardy Claims", Bar Briefs, November 2005

13. See Part Three in this series (paragraph D). Also see Flynn v. Cusentino, 59 Ill.App.3d 262 (3rd Dist., 1978)

14. Barry Mogul & Assoc, Inc. v. Terrestris Development Co., 267 Ill.App.3d 742 (2nd Dist., 1994)

15. 735 ILCS 5/2-1202(c)

16. See Part Four in this series. Also see "Post-Sentencing Motions in Criminal
Cases (Parts One and Two)," Bar Briefs, June & November 2004

17. People v. Arna, 168 Ill.2d 107 (1995) However, I can picture some claims of this nature lacking merit due to the restrictions imposed by Apprendi v. New Jersey, 530 U.S. 466 (2000).

18. 730 ILCS 5/5-8-1(c)

19. You may be able to file a request to submit a late notice of appeal if you miss the deadline. This topic will be covered in a future article.

20. See Part Three in this series (paragraph F). Also see "Post-Judgment Motions in Civil Non-Jury Cases: Don't Sweat the Small Stuff Any More?," Bar Briefs, October 2003

21. See Part Four in this series (paragraph F). Also see "Practical Appeals Advice - Part One - to Appeal or Not to Appeal," Bar Briefs, December 2005

22. See paragraphs G in both Parts Three & Four of this series.

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.