Recent decisions by Maine’s Law Court have raised questions as to whether a litigant must file a notice of cross-appeal merely to argue that a judgment should be affirmed based on grounds alternative to those adopted by the trial court.
Maine Rule of Appellate Procedure 2C, Law Court precedent, and analogous federal practice all confirm that an appellee urging affirmance of a judgment on alternative grounds need not file a notice of cross-appeal as long as that litigant does not seek a substantive alteration in the terms of the judgment.
Nevertheless, the Law Court recently created doubt on this issue by refusing to consider arguments for affirmance on alternative grounds where the appellee failed to file a notice of cross appeal.
Will Maine’s Law Court address and clarify its cross-appeal jurisprudence and reaffirm the plain terms of Rule 2C? In the meantime, what does this mean for litigators? Should they file a notice of cross-appeal to preserve and specify alternative arguments?
Click here to read the complete Maine Bar Journal article.
Joshua D. Dunlap and Nolan L. Reichl are co-chairs of Pierce Atwood’s Appellate & Amici Practice Group. Josh represents clients before federal and state appeals courts, and has argued and won appeals before the U.S. Court of Appeals for the First Circuit and the Maine Supreme Judicial Court. Josh is author of the firm’s Maine Appeals blog.
Nolan Reichl focuses his practice on civil litigation and appellate matters, including commercial disputes and challenges to administrative actions. Nolan represents institutional clients in a range of industries, and has represented some of the largest institutions in the U.S. and Maine.