The Insider’s Guide To The Michigan Appellate Courts
The Insider’s Guide to the MichiganAppellate CourtsBy Gaëtan Gerville-Réache & John J. BurschGaëtan Gerville-Réache is a partner in the Appellate and Supreme Court Practice Group atWarner Norcross & Judd and past-Chair of the Appellate Practice Section for the State Bar ofMichigan. He also currently sits on the Military Appeals Tribunal for the Michigan Departmentof Military and Veterans Affairs. Gaëtan has handled appeals involving more than 100 millionin controversy and multi-billion-dollar projects at stake. He has been recognized by his peers asa Michigan Super Lawyer for his experience and acumen in appellate law.John J. Bursch served as Michigan’s 10th Solicitor General and was a longtime partner at WarnerNorcross. He now practices as a solo appellate attorney in Caledonia, Michigan.This Guide was originally printed as Chapter 38 of theCouncil of Appellate Lawyers Appellate Practice Compendium,Published by the American Bar Association in 2012.This online version has been revised to reflect recent rule changes.Current through court rule amendments effective on or before October 25, 2016.
The Insider’s Guide to the MichiganAppellate CourtsI.Appellate ResourcesA.Court Websites and Dockets. The officialwebsite of the Michigan appellate courts is Hot Tip: For analysis of and links tohttp://courts.michigan.gov/, where attorneys can find Michigan appellate opinions andopinions, recent and proposed court rule changes, sta- orders, visit the One Court of Justicetistical reports, biographies, and many other sources Blog at www.ocjblog.com.of information divided between two separate websites, one for the Michigan Court of Appeals, and one for the Michigan Supreme ts.michigan.gov/opinions orders/case search/pages/default.aspx by case number,party name, or attorney. Although the online dockets do not yet contain hyperlinks to pleadings,as in PACER, they do contain links to official opinions and orders. In addition, the MichiganSupreme Court posts the briefing in any case where it has scheduled oral argument. Links to rt/oral-arguments/pages/default.aspx.B.Practice Guides. Chief among practice guides, the official Michigan Rules of chigan Court of Appeals also publishes online its Internal Operating Procedures rksoffice/pages/iop.aspx, which provide additional guidancefor interpreting the Michigan Court Rules and insight into how the court of appeals processescases.There are three unofficial guides for advocates practicing in the Michigan appellatecourts. The first, titled the Michigan Appellate Handbook, is a treatise published by theMichigan Institute of Continuing Legal Education (“ICLE”), which can be accessed atwww.icle.org for a fee. It has a practical focus and is updated annually. The second guide is aThompson West publication titled Civil Appeals. The West treatise has a more academic focusand is authored by Michigan Supreme Court Justice Stephen J. Markman. The third guide, alsopublished by Thompson West, is called Michigan Court Rules Practice. This treatise includes auseful digest of case authority interpreting and applying the appellate court rules.The Michigan Supreme Court Historical Society has also published the lications.C.Contacting the Clerk’s Office. The Michigan Court of Appeals is divided into fourdistricts, each with its own clerk’s office (though any office is available to answer questions,even about cases originally filed in other districts). Contact information is available at /contact.aspx. The Michigan Supreme Court has its-1-
own clerk’s office; contact information is available at lerks/pages/default.aspx. Neither the Supreme Court nor the court ofappeals assigns case managers to individual cases. Advocates will find the personnel in bothclerks’ offices to be friendly and extraordinarily helpful.D.Electronic Notices. Both the Michigan Supreme Court and the Michigan Court ofAppeals offer an email service for next-day delivery of opinions and orders. Advocates can signup through the courts’ websites. Analysis of and links to Michigan appellate opinions and ordersare also available through the One Court of Justice Blog, http://www.ocjblog.com.E.Legislative History Resources. Michigan’s legislative history is notoriously scant anddifficult to find. For a guide to what is available and how to locate it, review the Chapter onSources of Michigan Legislative Information, in the Legislative Service Bureau’s MichiganManual, at MM-P0263-p0266.pdf.F.Rule Amendments. For future rule changes, readers should visit the “Proposed andRecently Adopted Orders” section of the Michigan Supreme Court’s court/rules/court-rules-admin-matters/. Rules currently in effect can be found at ules/.II.Admission to Practice and Representation of CounselA.General. Attorneys admitted to practice in Michigan need not seek any further admissionto appear in the state’s appellate courts.B.Admission Pro Hac Vice. Out-of-state advocates seeking to enter an appearance in aMichigan case or proceeding must comply with Michigan’s pro hac vice rule, M.C.R. 8.126,which provides for an out-of-state advocate’s appearance in a maximum of five Michigan casesin a 365-day period. A Michigan attorney must file a motion and affidavit in the court whereadmission is sought and submit a copy of both to the Attorney Grievance Commission (“AGC”).The AGC must notify the court, within seven days, whether the out-of-state advocate has soughttemporary admission in the past 365 days and, if so, how many times. For the privilege ofpractice in Michigan, the out-of-state lawyer must pay once annually a fee to the Michigan StateBar of 135, regardless of the number of appearances. Each advocate admitted pro hac vicesubjects himself or herself to the jurisdiction of Michigan’s attorney disciplinary system.C.Appearance of Counsel on Appeal. The first pleading filed by an appellant constitutesan appearance by the appellant’s attorney. M.C.R. 2.117. Within 14 days after being servedwith a claim of appeal, the appellee shall file an appearance in the Court of Appeals and in thecourt from which the appeal is taken. M.C.R. 7.204(G). An appellee who does not file a timelyappearance is not entitled to notice of further proceedings until an appearance is filed.D.Withdrawal and Substitution of Counsel on Appeal. Withdrawal and substitution ofcounsel require leave of court and may be requested by motion. See generally M.C.R. 7.211(court of appeals); M.C.R. 7.313 (Supreme Court).E.Ethical Rules and Standards. The Michigan Rules of Professional Responsibility applythroughout Michigan’s courts. There are no ethical rules or standards unique to Michiganappellate practice.-2-
III.The Appellate Court SystemA.Structure. Michigan has a traditional, two-tier appellate structure, including an intermediate court of appeals and the highest court in the state, the Michigan Supreme Court. The courtof appeals is divided into four districts: Detroit, Troy, Grand Rapids, and Lansing. MichiganCourt of Appeals judges are elected by district but hear cases in all four districts, and opinions donot specify the district from which they originate.B.Mandatory Jurisdiction. The Michigan Court of Appeals has jurisdiction to hear an appeal “of right” from a final judgment or order of a circuit court or court of claims, M.C.R. 7.203,and certain decisions of the Michigan probate courts and administrative agencies, Mich. Comp.Laws § 600.308. The Michigan Court Rules generally define a “final judgment” or “final order”in a civil case as “the first judgment or order that disposes ofall the claims and adjudicates the rights and liabilities of all Hot Tip: All final Michiganthe parties.” M.C.R. 7.202(6)(a)(i). In other words, “A final trial court orders must stateorder is an order which, by itself or in conjunction with pre- that the order “resolves thevious orders, disposes of all of the claims of all of the parties last pending claim and closesor is an order which, although otherwise not final, disposes of the case.” M.C.R. 2.602. Ifat least one claim of one party and is certified as a final order retained before the final orderunder MCR 2.604(A).” Dean v. Tucker, 182 Mich. App. 27, is entered, ensure this magic30, 451 N.W.2d 571 (1990). Final orders in a civil case also language is included.include those: designated by a trial court as final in a multiparty action; involving the custody of a minor; awarding or denying attorney fees and costs; ordenying governmental immunity. M.C.R. 7.202(6)(a). Note, dismissal for lack of progressunder M.C.R. 2.502 is not a final order or judgment, but an order denying a motion to reinstatethe action is a final order. Wickings v. Arctic Enters., Inc., 244 Mich. App. 125, 135–37, 624N.W.2d 197 (2000).Final orders in a criminal case include those dismissing the case; imposing a sentence following conviction; Hot Tip: A post-judgmentimposing a sentence following the grant of a motion for order that is not listed inresentencing; imposing a sentence following remand from an M.C.R. 7.202(6)(a) is notappellate court in an appeal of right; or imposing a sentence appealable as of right butfollowing revocation of probation. M.C.R. 7.202(6)(b). The may be appealed by leave.court of appeals also has jurisdiction over and may entertainan action for superintending control, mandamus, habeas corpus, quo warranto, and certainoriginal actions. M.C.R. 7.203(C).Michigan trial court judgments must state whether the order “resolves the last pendingclaim and closes the case.” M.C.R. 2.602. If retained before a final order is entered, ensure thismagic language is included. But do not rely on this language to determine whether an order isfinal or not. The appellate court has the final say on whether the order is final. McCarthy &Assocs., Inc. v. Washburn, 194 Mich. App. 676, 680, 488 N.W.2d 785 (1992). Failure to timelyappeal an order designated as non-final deprives the court of appeals of jurisdiction to hear theappeal as of right.To vest the Court of Appeals with jurisdiction to hear an appeal of right, the appellantmust timely file a claim of appeal and filing fee. M.C.R. 7.204(A); see generally section IV.A,infra. The court then has jurisdiction to hear issues related not only to the final order but also to-3-
other orders in the case. Bonner v. Chicago Title Ins. Co., 194 Mich. App. 462, 472, 487N.W.2d 807 (1992). The Court may even review orders denying post-judgment relief, if suchorders are entered before the appeal is filed. See, e.g., Unibar Maint. Servs., Inc. v. Saigh, 283Mich. App. 609, 612, 769 N.W.2d 911 (2009); Snell v. UACC Midwest, Inc., 194 Mich. App.511, 512, 487 N.W.2d 772 (1992); see also Bell v. Mich. Council 25 of Am. Fed’n of State,County, Mun. Emps., AFL-CIO, Local 1023, No. 246684, 2005 WL 356306, at *9 (Mich. Ct.App. Feb. 15, 2005). This does not mean, however, that a party may wait until a second finalorder is entered, appeal that second order, and then challenge an initial final order in that appealas a “related” order in the case. Surman v. Surman, 277 Mich. App. 287, 293–94, 745 N.W.2d802 (2007). When a final order is entered, time for appealing that order begins to run, and aclaim of appeal from that order must be timely filed. Id.If a timely motion for post-judgment relief remains pending in the lower court, the courtof appeals lacks jurisdiction to hear an appeal of right. Jerico Constr., Inc. v. Quadrants, Inc.,257 Mich. App. 22, 37, 666 N.W.2d 310 (2003). When such a motion is timely filed underM.C.R. 7.204(A), it suspends the final judgment until the trial court enters an order denying themotion. Id. But the motion must be both filed and denied to reset the time for appeal. M.C.R.7.204(A). For that reason, exercise extreme caution in withdrawing such a motion. Doing soprevents the trial court from entering an order denying the motion to reset the time for appeal,and the time to file a claim of appeal from the original final order may have lapsed. See sectionsV.A. and XXII.B for appeal time limitations and requirements.An order entered after the claim of appeal has been filed is not subject to review as anissue presented in the instant appeal. Gracey v. Grosse Pointe Farms Clerk, 182 Mich. App.193, 197, 452 N.W.2d 471 (1989). Depending on the nature of the order, the court of appealswill review the order through a motion filed in the instant appeal or through a separate appeal.Though its jurisdiction is limited, the trial court retains concurrent jurisdiction to enter certainorders, such as bond and stay orders. See M.C.R. 7.208. Generally, if the rules provide that thetrial court retains authority “except as the Court of Appeals otherwise orders,” then the court ofappeals will review the trial court’s exercise of that authority by motion. See, e.g., M.C.R.7.208(F), 7.209(H)(2); sections IV.C, VIII.D, infra; see generally section VIII, infra. But if thetrial court’s post-appeal order qualifies as a final order—such as an award of attorney fees underM.C.R. 7.208(I)—the aggrieved party must timely file a claim of appeal from that order. See,e.g., McIntosh v. McIntosh, 282 Mich. App. 471, 484, 768 N.W.2d 325 (2009) (holding that atrial court’s decision on a post-appeal motion for attorney fees is a final order requiring a separate claim of appeal); but see John J. Fannon Co. v. Fannon Prods., LLC, 269 Mich. App. 162,165, 712 N.W.2d 731 (2006) (holding that an order awarding attorney fees is not a final order ifit does not specify the amount to be paid).C.Discretionary Jurisdiction. In addition to its mandatory jurisdiction, the court of appealsalso exercises discretionary jurisdiction, which it may invoke in response to an application forleave to appeal. The court may grant leave to appeal from a judgment order of the circuit court,court of claims, or recorder’s court which is interlocutory; a final judgment entered by the circuitcourt or the recorder’s court on appeal from any other court; a final order of an administrativeagency or tribunal which by law is appealable to or reviewable by the court of appeals or theSupreme Court; any judgment or order appealable to the court of appeals by law or rule; or anyjudgment or order when an appeal of right could have been taken but was not timely filed.M.C.R. 7.203(B).-4-
The Michigan Supreme Court’s jurisdiction is mostly discretionary, and is similarlyprompted by an application for leave to appeal or, in rare instances, a complaint for superintending control. M.C.R. 7.303. The court may review a case pending in the court of appeals orafter decision by the court of appeals; review a final order of the Attorney Discipline Board;provide an advisory opinion; respond to a certified question; exercise superintending control; orexercise other jurisdiction as provided by the Michigan Constitution or by law. M.C.R.7.303(B). However, the court must review a Judicial Tenure Commission order. M.C.R.7.303(A).D.Certification to Other Courts. The Supreme Courtmay, at its discretion, issue an opinion to answer a certifiedquestion from a Michigan court, a federal court, or anotherstate’s appellate court. M.C.R. 7.308; Mich. Comp. Laws§ 600.215(2). Michigan has not adopted the UniformCertification of Questions of Law Act, and the MichiganCourt Rules do not contemplate a Michigan court requestingcertification from a non-Michigan court.IV.Hot Tip: Certification israre. In the 1990s, theMichigan Supreme Courtrefused a number of SixthCircuit requests forcertification, and the SixthCircuit now rarely asks.Initiating the Appeal in the Court of AppealsA.Notice of Appeal. A “claim of appeal” as of right in a civil case must be filed within 21calendar days of the date of entry of the final judgment, or 21 days after the date of entry of anorder denying a post-judgment motion for relief. M.C.R.7.204(A)(1). Note that the time limit is only 14 calendar days Hot Tip: If you miss thefollowing an order terminating parental rights. M.C.R. jurisdictional deadline to file7.204(A)(1)(c). An appeal of right in a criminal case must be a claim of appeal, you canfiled within 42 calendar days of the date a trial court enters its still file an application forfinal judgment or decision on a timely post-judgment motion, leave for appeal.with certain exceptions when an indigent defendant requestsappointment of counsel. M.C.R. 7.204(A)(2). Michigan applies a “prison mailbox rule,” whichdeems a claim of appeal to be filed once an appellant inmate deposits it in the outgoing mail atthe correctional institution. M.C.R. 7.204(A)(2)(e). Such a filing should include a swornstatement stating the date of deposit and that first-class postage was prepaid. Id.The date of entry is the date that the final order is signed. M.C.R. 2.602(A)(2). If multiple post-judgment motions are filed within the jurisdictional appeal period, the time for filing anappeal of right will not begin to run until all such motions are resolved. Barnard Mfg. Co., Inc.v. Gates Performance Eng’g, Inc., 285 Mich. App. 362, 368, 775 N.W.2d 618 (2009). By contrast, filing a subsequent motion for reconsideration, after an order on a timely motion for postjudgment relief is denied, does not continue to toll the time for filing an appeal from the finaljudgment unless the motion for reconsideration itself was filed within the jurisdictional timeperiod for appealing the final judgment. Allied Elec. Supply Co., Inc. v. Tenaglia, 461 Mich.285, 288–89, 602 N.W.2d 572 (1999).Hot Tip: The claim ofThe time limit for an appeal of right is jurisdictionaland cannot be extended, either by stipulation or by the trial appeal and the appeal fee arecourt. M.C.R. 7.204(A). In two-party cases, the court of the only requirements tosecure appellate jurisdiction.Failure to comply with anyother requirement will resultonly in a defect letter from-5the Court of Appeals with a21-day cure period.
appeals provides a standard form for filing the claim of appeal, courtforms/appeals/mc55.pdf. In addition,the appellant must pay the fee specified by Mich. Comp. Laws § 600.321 (currently 375).The claim of appeal must identify the final judgment or final order appealed from, even ifthe reversible error arose in a prior or subsequent order. Nye v. Gable, Nelson & Murphy, 169Mich. App. 411, 415–16, 425 N.W.2d 797 (1988). The final order is not necessarily the lastorder entered in the case. Dean v. Tucker, 182 Mich. App. 27, 30, 451 N.W.2d 571 (1990); seeM.C.R. 7.202(6) (defining “final judgment” or “final order”). As mentioned above, the Courtmay review issues related to other orders in the case as part of the appeal from the final order.The procedure for requesting leave to appeal is different and requires filing and service ofan application, not a claim of appeal. See section XXI.B, infra. Though the court has authorityto treat an appeal as reviewable where the wrong procedure is used, it exercises this authorityonly in rare circumstances, such as where the parties and the court have failed to notice or raisethe defect until late in the appeal. See, e.g., Newton v. Mich. State Police, 263 Mich. App. 251,259, 688 N.W.2d 94 (2004) (“[W]e choose to treat the defective claim of appeal as an application for leave to appeal and to grant l
The Insider’s Guide to the Michigan Appellate Courts _ By Gaëtan Gerville-Réache & John J. Bursch Gaëtan Gerville-Réache is a partner in the Appellate and Supreme Court Practice Group at Warner Norcross & Judd and past-Chair of the Appellate Practice Section for the State Bar of Michigan.
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