In the Michigan Court of Appeals, when a party files an appeal as of right (or the Court of Appeals grants leave to appeal), the appellee is entitled to file a cross-appeal. MCR 7.207(A)(1) ("When an appeal of right is filed or the court grants leave to appeal any appellee may file a cross appeal."). But what is the proper scope of a cross-appeal? Is it limited to the judgment or order being appealed? Can a cross-appeal raise issues involving parties that were unaffected by the original claim of appeal?
In Costa v Community Emergency Medical Services, Inc, 263 Mich App 572; 699 NW2d 712 (2004), aff'd 475 Mich 403 (2006), the Court of Appeals confirmed that "[t]he language of MCR 7.207 does not restrict a cross-appellant from challenging whatever legal rulings or other perceived improprieties occurred during the trial court proceedings." Id. at 583-584. In Costa, the defendants appealed as of right from the trial court's order denying their motion for summary disposition based on governmental immunity. The plaintiffs cross-appealed from the same order, which had also denied the plaintiffs' own motion for summary disposition. The defendants argued that the Court of Appeals did not have jurisdiction to consider the plaintiffs' cross-appeal because the portion of the order denying the plaintiffs' motion for summary disposition was not appealable as of right (whereas the denial of governmental immunity was appealable as of right under MCR 7.202(6)).
In rejecting the defendants' argument, the Court in Costa acknowledged that the defendants' initial appeal was limited to the governmental immunity issue in accordance with MCR 7.203(A)(1), which "explicitly prescribes the scope of an appellant's appeal as of right from a final order under MCR 7.202(6)(a)(iii)-(v), such as an order denying summary disposition on the issue of governmental immunity, and limits an appellant's right to appeal under these circumstances 'to the portion of the order with respect to which there is an appeal as of right.'" Id. at 583. The Court observed, however, that MCR 7.207(A)(1) does not "similarly restrict the scope of cross-appeals":
[T]he court rule governing cross-appeals to this Court, MCR 7.207, does not contain any language of limitation. Instead, the clear and unambiguous terms of MCR 7.207(A)(1) authorize any appellee to file a cross-appeal whenever an appellant has either filed an appeal as of right, or when this Court has granted an appellant's application for leave to appeal. The language of MCR 7.207 does not restrict a cross-appellant from challenging whatever legal rulings or other perceived improprieties occurred during the trial court proceedings. Indeed, MCR 7.207(D) states that even "[i]f the appellant abandons the initial appeal or the court dismisses it, the cross appeal may nevertheless be prosecuted to its conclusion." See In re MCI, 255 Mich App 361, 364-365; 661 NW2d 611 (2003). [Costa, 263 Mich App at 583].
The Court of Appeals recently reaffirmed Costa's analysis in 123.net, Inc v Serra, unpublished opinion per curiam of the Court of Appeals, issued Dec 2, 2021; 2021 WL 5750626 (Docket No. 353075), concluding that a cross-appeal provides the Court "jurisdiction to hear . . . challenges to matters falling outside the scope of the final order appealed." Id., 2021 WL 5750626, *10.
Although Costa and 123.net happened to involve cross-appeals filed in response to a claim of appeal as of right, MCR 7.207(A) also applies to cross-appeals filed after the Court of Appeals has granted leave to appeal. See Bancorp Group, Inc v Meister, 459 Mich 944; 590 NW2d 65 (1999) (holding that there was "no basis" for limiting a cross-appeal to issues relating to the specific order appealed by the appellant by leave granted).
Finally, it does not matter whether the cross-appeal involves parties that were not affected by the original claim of appeal. MCR 7.207(A)(2) provides that "[i]f there is more than 1 party plaintiff or defendant in a civil action and 1 party appeals, any other party, whether on the same or opposite side as the party first appealing, may file a cross appeal against all or any of the other parties to the case." As explained in the Michigan Appellate Handbook, § 4.45 (ICLE 3d ed, 2013), this gives rise to important strategic considerations when deciding whether to file an appeal in the first instance:
The filing of a cross-appeal entitles the filing appellee (who becomes a cross-appellant) to seek relief against not only the appellant, but also any other appellee, including one who was unaffected by the original claim of appeal. MCR 7.207(A)(2). There is no requirement that a cross-appeal be limited in scope as a result of, or that it address the same issues as, the direct appeal . . . . This is an important strategic nuance that every party must consider when analyzing the pros and cons of claiming an appeal (or filing an application for leave to appeal): the appeal automatically entitles all other parties in the case to file a cross-appeal. Even a defendant who has deliberately forgone an appeal of right can reconsider that decision, and change its mind, if the plaintiff claims an appeal.
A version of this article was previously published in the Michigan Defense Quarterly, Vol. 38, No. 4 (2022).
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