You Won the Verdict. Do You Still Need to Cross-Appeal?

Sep 15

You move for a directed verdict before the case goes to the jury, and the motion is denied. The jury returns a verdict for you anyway. The other side files a notice of appeal. You might read this as good news: you already won, so you have nothing left to protect.

Under Georgia’s Appellate Practice Act, a notice of appeal needs only a concise statement of the judgment or order being challenged. The enumeration of errors arrives later, with appellant’s brief. That timing creates the real problem. The Georgia notice of cross appeal deadline is 15 days from service of the notice of appeal. The appellant's brief, where the arguments finally surface, is not due until well after that window closes. You have to decide whether to protect your verdict before you know what you are protecting it from.

If the appellate court reverses and remands the case for a new trial, a second jury will determine the outcome. But if the evidence entitled you to win as a matter of law at the directed verdict stage in the first trial, and that argument is never raised on appeal, the chance to head off a retrial altogether will be lost. When is a cross-appeal required in Georgia, and when can a prevailing party simply defend the judgment?

A quick example

Consider a general contractor that sues a subcontractor for breach of contract, alleging defective work and seeking the cost of remediation. At the close of the general contractor's case, the subcontractor moves for a directed verdict, arguing the general contractor's evidence failed to establish that the parties had a binding contract for the disputed work. The trial court denies the motion. The jury returns a verdict for the subcontractor anyway.

The general contractor appeals, arguing the trial court erred by excluding certain testimony and that the exclusion warrants a new trial. On its face, this looks like the general contractor's problem to solve. But if the appellate court agrees the exclusion was error, the default remedy is a new trial, not a win for the general contractor. The subcontractor would be back in front of a second jury, defending a case it already won once.

This is where the denied directed verdict becomes relevant again in a Georgia civil appeal. If the general contractor's evidence failed to establish a binding contract in the first trial, it likely fails to establish one in the second trial too. Raising that argument on appeal, and doing so correctly, may let the appellate court end the case rather than send it back.

When a Cross-Appeal Is Actually Required

A party who wins at trial can defend that judgment on appeal on any ground the record supports, without filing anything of its own, so long as the argument only supports the judgment as it stands and does not seek anything beyond affirmance. Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1987).

But an appellee who wants the appellate court to direct entry of judgment on a denied directed verdict motion, rather than simply defend the verdict, needs the cross-appeal vehicle to put that ruling before the court, particularly since the opponent's appeal could otherwise send the case back for a new trial. O.C.G.A. § 5-6-38(a); Vinson v. Piedmont Housing, Inc., 198 Ga. App. 814 (1991). Enumerating that denial as error, which only an appellant or cross-appellant can do, is what allows the appellate court to direct judgment on the motion instead of ordering a retrial. O.C.G.A. §§ 5-6-36, 9-11-50(e).

In practice, this splits into two cases. When nothing about the appellant's claimed errors would change the outcome anyway, arguing that a directed verdict should have been granted is safe to leave out of a cross-appeal. When those claimed errors, if accepted, would send the case back for a new trial, the cross-appeal becomes critical.

A related but separate question is whether an appellate court can affirm on a ground that was never raised in the trial court at all, as opposed to a ground that was raised and ruled on below, which is what the cross-appeal analysis above addresses. Georgia's "right for any reason" rule allows the former in some circumstances, and the Court of Appeals recently split on how far that discretion extends. Liberman Law represented the prevailing appellee in Gaddy v. Sherard, 377 Ga. App. 636 (2025), where the majority affirmed on a ground Sherard had not raised below, finding it "straightforward and clearly established by the record," over a dissent that would have required the ground to first be argued to the trial court. We'll cover that doctrine in a separate piece.

What Happens When There Is Nothing Left to Cross-Appeal?

In Vinson v. Piedmont Housing, Inc., 198 Ga. App. 814 (1991), the Court of Appeals dismissed a cross-appeal because reversal of the main appeal could not lead to a new trial. A jury returned a verdict for the plaintiff. Before judgment was entered on that verdict, the defendant moved for JNOV, and the trial court granted it. The plaintiff pursued a discretionary appeal, and the defendant cross-appealed.

The Court of Appeals held the JNOV motion was void, since it had been filed before judgment was entered on the verdict, and reversed with direction that judgment be entered on the jury's verdict. It then dismissed the cross-appeal outright. The court's reasoning tracked the rule described above: a cross-appeal exists to review adverse trial rulings when the opponent's success on the main appeal would otherwise send the case back for retrial. Because reversing the JNOV simply reinstated the jury's verdict, no retrial was going to happen, and the cross-appeal had nothing left to protect.

Is there any downside to filing a cross-appeal?

A protective cross-appeal can be expressly conditioned on the appellant winning reversal in the main appeal. If the appellate court affirms the judgment instead, the cross-appeal is deemed withdrawn without any further action. SAKS Associates, LLC v. Southeast Culvert, Inc., 282 Ga. App. 359 (2006). If the main appeal fails, the cross-appeal simply disappears. If it succeeds, the argument is already preserved and ready to be heard.

What this means in practice

Whether you need a protective cross-appeal in Georgia turns on how the appellant's specific claims of errors would play out if the appellate court accepts them: an outright reversal, a remand for further proceedings, or a new trial. It also turns on whether the record supports the stronger argument that the court should have entered judgment as a matter of law in the first place.

Make this fact-specific evaluation early, ideally as soon as the appellant serves the notice of appeal, since the Georgia cross-appeal filing window is short.

This article provides general information about Georgia appellate procedure and does not constitute legal advice. Whether a protective cross-appeal is necessary depends on the specific rulings, claimed errors, and procedural posture of a given case. Trial counsel who bring us in as embedded appellate counsel earlier in the litigation avoid the short filing deadline entirely. We already know the record, the rulings, and the client's position, so a short deadline like the cross-appeal window never becomes a scramble.

Julie Liberman