Remember your cross-appeal

In the Tennessee Court of Appeals, litigants can raise whatever issues they want, regardless of which party filed the notice of appeal. The party simply needs to identify the issue as such and formulate an argument, assuming it was preserved in the trial court.

But in federal courts, the only issues available for an appellee are those that would result in affirmance or dismissal of the appeal. That is, one cannot seek to enlarge one’s own rights, or diminish the other party’s rights, merely as an appellee. To achieve that kind of alteration (as opposed to mere affirmance) of the lower court’s judgment, a party must file a separate notice of appeal. Where some other party has already filed a notice of appeal, the new notice is called a notice of cross-appeal.

An appellee learned this the hard way last week in the Eleventh Circuit. The trial court dismissed a bankruptcy debtor’s claim under the Thirteenth Amendment for lack of standing, and the bankruptcy debtor appealed. The Eleventh Circuit reversed the standing dismissal. While doing so, it cast an understandably jaundiced eye on the merits of the claim. (The claim, that being removed as a debtor in possession in a Chapter 11 case entails involuntary servitude, is not as original as it sounds: we have encountered it before.) But because there was no cross-appeal filed, the Court could not reach the merits: ruling on them would have entailed (presumably) a dismissal with prejudice, while the standing judgment below was without prejudice.

Now the creditors and the trustee will have to litigate the merits of the Constitutional issue in the bankruptcy court, and perhaps through two more appeals. If they had preserved the merits question initially and filed a notice of cross-appeal, they could have had the Court of Appeals end the whole ordeal. The case is an excellent example of how being aware of procedural details on appeal can save clients time and money.

The case is Breland v. United States (In re Breland), No. 19-14321, — F.3d — (11th Cir. 2021), available at

– P.K.