Georgia Supreme Court Clarifies Timing of Cross-Appeals

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In Sewell v. Cancel, S13G1274 (June 2, 2014), the Georgia Supreme Court ruled that the appeals courts have jurisdiction “over a properly filed cross-appeal seeking review of an order entered after the filing of the original notice of appeal but prior to the notice of cross-appeal.” Slip op. at 1.

In November 2011, the trial court granted summary judgment to defendants on all claims of one plaintiff, Cancel. The trial court then issued a second order, denying summary judgment to one defendant on the claims of all other plaintiffs. At this point, Cancel filed a timely notice of appeal of the first order. After that filing, the trial court issued a third order, denying motions for summary judgment filed by other defendants as to the remaining plaintiffs. It was only then that any defendants filed notices of cross-appeal.

The Court of Appeals affirmed the first order, reversed the second order, and dismissed the appeal of the third order, finding that “[j]udgments cannot be considered on appeal if rendered subsequent to the judgment appealed from,” and that “to hold otherwise would permit a cross-appellant (the party often with no right to directly appeal) to challenge rulings entered during the 15 days after the filing of the appellant’s notice of appeal, whereas it is axiomatic that the appellant (the party with the right to a direct appeal) may not.” Cancel v. Sewell, 321 Ga. App. 523, 536-37 (740 SE2d 870) (2013) (citation and quotation marks omitted).

The Supreme Court unanimously reversed the dismissal. The cross-appeal statute, OCGA § 5-6-38(a), allows cross-appeal by the appellee, within 15 days of the appellant’s notice of appeal, of “all errors or rulings adversely affecting” the appellee. Relying on the plain language of the statute, the Court overruled earlier cases “requiring some factual nexus between the issues raised in the main appeal and those raised in the cross-appeal.” Slip op. at 7. As to the timing, the Court was untroubled by the Court of Appeals’ concern that this application of the statute would allow appellees, but not appellants, to appeal orders entered in the 15 days after the original notice of appeal. The Court stated that its holding “is not affected by, nor does it necessarily affect, our precedent involving attempts by appellants to effectively amend the original notice of appeal to encompass orders subsequently issued.” Slip op. at 9 n.3.

The Court’s decision requires strategic thinking by potential appellants. By filing a notice of appeal, an appellant cuts off its own right to appeal subsequent decisions of the trial court (unless such decisions are independently appealable), but gives the opposing party a 15-day window in which it alone will have a right to an immediate cross-appeal of otherwise unappealable decisions. The appellant has an incentive to attempt to time the filing of its notice of appeal, and the trial court’s subsequent orders (to the limited extent the appellant can control the timing of orders), so that no subsequent orders fall within the 15-day window.