Tuesday, February 20, 2007, 1:54 PM

COA Reminder about Cross-Assignments

In a case decided today the COA declined to address arguments raised by an appellee because the appellee didn't cross-assign error under Appellate Rule 10(d). The case is D.A.N. Joint Venture, III, L.P. v. Fenner (unpublished).

In this contract case, the COA ruled for the plaintiff, holding the trial court abused its discretion in not granting plaintiff a new trial after the jury answered "none" for the amount of damages owed to the plaintiff on the contract.

The defendant argued that the judgment should be affirmed on the alternative ground that the contract claim was barred by the statute of limitations and by a lack of consideration. The COA held that it couldn't address those issues because the defendant had failed to cross-assign error: "The statute of limitations and lack of consideration arguments could certainly provide an alternate basis for upholding the trial court's judgment. However, defendant did not cross-assign error to the trial court's failure to render judgment on these grounds. Defendant has not properly preserved these grounds for appellate review."

It is sometimes difficult to determine whether an appellee who prevailed in the trial court should cross-assign error or file a cross-appeal when an alternative basis exists for affirming the judgment. Even if a cross-appeal isn't filed, an appellee should consider whether a cross-assignment of error is warranted. As the Supreme Court has said, "Rule 10(d) provides protection for appellees who have been deprived in the trial court of an alternative basis in law on which their favorable judgment could be supported, and who face the possibility that on appeal prejudicial error will be found in the ground on which their judgment was actually based." Crawan v. Tate, 304 N.C. 696, 286 S.E.2d 99 (1982).

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