Tuesday, October 03, 2006, 3:00 PM

Unpublished COA Opinion Speaks to Cross-Assigning Versus Cross-Appealing

In an unpublished opinion filed today, Duffield v. Davis, cross-assignments by a plaintiff who won a motion for reconsideration and apparently got essentially the relief she sought were bumped by the COA because the plaintiff argued against the original order that was overturned on reconsideration. The COA said the plaintiff's arguments did not constitute an "alternative basis" for supporting the later order in plaintiff's favor, and therefore the plaintiff should have cross-appealed rather than just cross-assigned error.

Dufield may have turned on the fact that the motion for reconsideration was ultimately deemed improper. Dufield nevertheless suggests that even parties who 'won' at the trial court and arguably lack standing to appeal (based on precedent indicating that if you got the relief you sought, you're not aggrieved and cannot appeal (see, e.g., Templeton v. Apex Homes, Inc., 164 N.C. App. 373, 595 S.E.2d 769 (2004))) may want to carefully consider whether their arguments could potentially be construed, under a strict reading of Appellate Rule 10(d), as something other than an alternative basis for supporting the order appealed. If so, cross-appealing may be a safer bet than just cross-assigning.


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