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Scope Of Cross-Appeals In The Michigan Court Of Appeals – Trials & Appeals & Compensation



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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).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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