Last week the Nebraska Supreme Court decided an interesting appellate jurisdictional question. In Picard v. P& C Group I, 306 Neb. 292, the Supreme Court confronted allocation in a worker’s compensation case. The plaintiff had twice suffered work-related injuries, each to a different body part. Both injuries resulted in permanent partial disability and loss of earning capacity. The question was whether the worker’s compensation court could apportion any loss of earning power benefits attributable to her earlier injury toward any benefit due and owing for loss of earning power caused by the later injury. The Court of Appeals sustained the decision of the worker’s compensation court (which did not apportion) except as to the plaintiff’s entitlement to attorney fees, penalties and interest.
Both the employer and plaintiff petitioned for further review (“PFR”). The employer asked the Supreme Court to review the Court of Appeals’ decision vis-à-vis allocation. The plaintiff wanted the Court to review the taking away of her attorney fees, penalties and interest. The Supreme Court granted the employer’s PFR but denied the plaintiff’s PFR.
When Rejected at the Front Door, Go Through the Back Door
The denial, however, did not stop the plaintiff or her attorneys. When the parties filed supplemental briefs addressing the issue on further review, the plaintiff filed a cross- appeal. Her cross-appeal raised the exact same issue as her PFR, which the Supreme Court denied.
You may be thinking, “Woah, not so fast! You can’t cross-appeal if the Supreme Court denied your PFR.” The Supreme Court, however, blessed the procedural coup. As the court explained, cross-appeals exist only under the rules of the Nebraska Supreme Court. Those rules – and Rule 2-109 in particular – expressly allow appellees to insert a cross-appeal into their brief so long as the cross-appeal complies with the rules. Plaintiff’s cross-appeal did comply. Therefore, the Supreme Court had jurisdiction to resolve the cross-appeal on its merits (which it overruled in short order).
Take-Aways from Picard
Picard raises three important points.
First, it’s holding should not be overread. Although the Supreme Court allowed the cross-appeal, it was only because the plaintiff had preserved the issue. Had she lost at the trial court level, but not cross-appealed the to the Court of Appeals, the court would not have given her cross-appeal the time of day. See Steele v. Sedlacek, 261 Neb. 794 (2001)(refusing to consider merits of cross-appeal filed in PFR supplemental brief because the cross-appellant did not cross-appeal in the Court of Appeals and therefore had not assigned such errors for review by the Court of Appeals). Of course, since she prevailed at the trial court level there would have been nothing to cross-appeal at the Court of Appeals.
Also, had she not petitioned for further review after losing before the Court of Appeals, the Supreme Court likely would not have considered the cross-appeal on its merits. See Ludwick v. Tri-West Healthcare Alliance, 267 Neb. 887 (2004)(refusing to consider issue on cross-appeal asserted in PFR supplemental brief since the cross-appellant did petition for further review). But see Kline v. Farmers Ins. Exch., 277 Neb. 874 (2009)(allowing cross-appeal asserted in PFR supplemental brief even though the cross-appellant had not petitioned for further review; the cross-appellant won before the Court of Appeals and therefore had no reason to petition for further review; but once a PFR was filed, the only way for the cross-appellants to preserve any errors was to file a cross-appeal).
A cross-appeal in a PFR supplemental brief is not a panacea and will not make up for missed opportunities. The plaintiff’s cross-appeal was permitted only because she followed the general rule of ‘preserve early and preserve often’ (i.e., the first time the issue arises and every time the issue arises).
Second, make sure you know your appellate procedural rules. And even when you think you know them, take the time to review the rules with a fresh set of eyes. Had the plaintiff’s attorneys not done so, they may have treated the PFR denial as the end and not cross-appealed at all.
That leads to the third and final takeaway: even if you can do something it does not necessarily mean you should do it. There was a reason why the Supreme Court denied the plaintiff’s PFR. Though not impossible, it was improbable the court would deny the PFR but then agree with her position on cross-appeal.