Lippert v. AVCO Community Developers, Inc
In Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, the plaintiff homeowners sued a developer for construction defects, and judgment on a jury verdict was entered in favor of the plaintiffs following trial.
The defendant moved for judgment notwithstanding the verdict (JNOV) and new trial, and the trial court granted both motions.
The homeowners appealed, and the court reversed the JNOV and reinstated the judgment on the jury verdict. The developer then filed its own appeal from that judgment.
The plaintiffs asserted that the developer's appeal was untimely and moved to dismiss the appeal under California Rules of Court, rules 2 and 3(c).
The court allowed the appeal to go forward. The court held that the 60-day time limit under rule 2 did not begin to run because there was no extant judgment from which the developer could have appealed during the homeowners' original appeal; the grant of JNOV vacated the earlier judgment, and "no appeal lies from a vacated judgment." (Lippert, at pp. 777-778.)
The court further held that California Rules of Court, rule 3 does not expressly provide for a cross-appeal when the main appeal was taken from a JNOV, and thus, the developer had not waived its right to appellate review by failing to file a protective cross-appeal with the homeowners' appeal.