MDTC Appellate Practice Report


Phillip J. DeRosier, Dickinson Wright

Trent B. Collier, Collins Einhorn Farrell, P.C.

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Date of “Entry” of an Order or Judgment for Purposes of Appeal

Recently on the SBM Appellate Practice Section listserv, there was discussion about the date of “entry” of trial court judgments and orders for purposes of filing an appeal. Under MCR 7.204(A), “‘entry’ means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal’s register of actions.” This means that if a judge signs a judgment or order on one day, but then the court clerk delays entering the order on the court’s docket for a few days, the appellant in a civil case can rely on the later date in calculating the appeal periods under MCR 7.204(A)(1).

The definition of “entry” is different, however, when it comes to filing post-judgment motions in the trial court, which may toll the time to file an appeal (in the case of motions for new trial, for rehearing or reconsideration, or for other relief from the order or judgment appealed, MCR 7.204(A)(1)(b)), and which may even be necessary to preserve an issue for appeal. Under MCR 2.602(A)(2), the “date of signing an order or judgment is the date of entry.”

The difference between these “entry” dates is summarized in 3 Longhofer, Michigan Court Rules Practice, § 2602.3 (6th ed):

The date of entry of a judgment or order is very important. Several court rules provide for limited periods of time within which post-trial actions must be taken, with the time commencing upon “entry of judgment.” MCR 2.602(A) specifies that judgments and orders are considered “entered” the date they are signed by the court, whether or not they are also filed with the clerk of the court on that date….

For purposes of subchapter 7.200 of the MCR, which includes the important deadlines for taking appeals, “entry” is defined somewhat differently. Under MCR 7.204(A), “entry” means “the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal’s register of actions.”

One final note of caution. While MCR 2.602 and MCR 7.204 focus on the date of “entry” of a circuit court judgment or order and the timing for filing an appeal from circuit court to the Court of Appeals, other triggering dates may apply in appeals from specialized tribunals or administrative agencies. See, e.g., MCR 7.116(B) (providing that appeals to the circuit court under the Michigan Employment Security Act must be filed “within 30 days after the mailing of the commission’s decision”). Thus, it is important to consult the rules that apply to the particular court, tribunal, or agency from which an appeal is being taken to determine where and when the appeal should be filed.

Precedential Value of Published Court of Appeals Decisions That Conflict With Supreme Court Precedents

MCR 7.215(J)(1) provides that “[a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.” But what if the prior decision was itself contrary to other binding precedents? Does a subsequent Court of Appeals panel still have to follow it? The answer would appear to be “no.”

While MCR 7.215(J)(1) governs a Court of Appeals panel’s obligation to follow the published decision of a prior panel, this necessarily assumes that the prior decision “established” a “rule of law.” This cannot be the case if there was already existing precedent that the prior decision itself failed to follow. If, for example, the prior opinion conflicts with case law from the Supreme Court, those decisions must be followed notwithstanding MCR 7.215(J)(1). See Hauser v Reilly, 212 Mich App 184, 187; 536 NW2d 865 (1995) (“A decision of the Supreme Court is binding upon this Court until the Supreme Court overrules itself.”).

The Court of Appeals’ decision in Ostroth v Warren Regency GP, LLC, 263 Mich App 1; 687 NW2d 309 (2004), illustrates this. In Ostroth, the Court of Appeals considered whether it was bound by its prior decision in Witherspoon v Guilford, 203 Mich App 240; 511 NW2d 720 (1994), on an issue involving application of the statute of repose and statute of limitations for negligence actions against architects, contractors, and engineers. The Ostroth panel acknowledged that, as a general matter, MCR 7.215(J)(1) would require it to follow Witherspoon. The problem, however, was that Witherspoon was contrary to the Supreme Court’s decision in O'Brien v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980). Ostroth thus concluded that “[p]ursuant to the doctrine of stare decisis,” it had to reject Witherspoon. See also Oliver v Perry, unpublished opinion per curiam of the Court of Appeals, issued June 7, 2011 (Docket No. 296871) (declining to follow otherwise binding Court of Appeals decisions in light of a contrary Supreme Court order).

The same can be said about a published Court of Appeals decision that does not follow controlling precedents from that Court. In Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264; 769 NW2d 234 (2009), the Court of Appeals considered the “current viability of the continuing wrongs doctrine in the context of nuisance and trespass claims.” Id. at 282. Froling Trust observed that while a prior panel in Schaendorf v Consumers Energy Co, 275 Mich App 507; 739 NW2d 402 (2007), had already concluded that “the continuing-wrongful-acts doctrine is no longer viable with respect to claims arising beyond the period of limitations,” and applied its ruling to uphold the dismissal of a nuisance claim, two other panels had failed to follow Schaendorf. See Attorney General ex rel Dep't of Environmental Quality v Bulk Petroleum Corp, 276 Mich App 654; 741 NW2d 857 (2007); Dep't of Environmental Quality v Waterous Co, 279 Mich App 346; 760 NW2d 856 (2008). The Froling Trust panel explained that Bulk Petroleum and Waterous were obligated to follow Schaendorf, and that because they did not, it was “obligated to reject [them].” Id. at 286.

Lech v Huntmore Estates Condo Association on Interest and Recoverable Attorney’s Fees

On April 16, 2015, the Michigan Court of Appeals issued a published opinion in Lech v Huntmore Estates Condo Association.,1 Lech expands on the Michigan Supreme Court’s 2005 opinion in Haliw v Sterling Heights,2 and provides guidance on two issues: (1) whether appellate costs are included in offer-of-judgment sanctions, and (2) whether Michigan’s judgment-interest statute applies to sanctions awards. Spoiler: it answered both questions with “no.”

In Haliw, the Michigan Supreme Court held that attorney fees incurred on appeal are not included when a party is entitled to case-evaluation sanctions under MCR 2.403. The Haliw court’s ruling, as Lech explains, was grounded in the language and logic of Rule 2.403: (1) the rule governing case evaluation sanctions is found in the chapter of the Michigan Court Rules that discusses trials, not the chapter applicable to appeals; (2) the sanctions rule is tied to the verdict, rather than the outcome on appeal; (3) a party seeking case evaluation sanctions must request them before an appeal is completed; and (4) the rule requires a “causal nexus” between the rejection of a case-evaluation award and the incurred expenses.3

The Court in Lech reasoned that each of these rationales applies equally to offer-of-judgment sanctions under Rule 2.405. Consequently, appellate costs and fees are not included in offer-of-judgment sanctions.

As for judgment interest, the Court of Appeals turned to the text of MCL 600.6013 and caselaw defining the term “money judgment.” MCL 600.6013 states that “[i]nterest is allowed on a money judgment recovered in a civil action, as provided in this section.” Quoting the Michigan Supreme Court’s opinion in In re Forfeiture of $176,598, the Lech court held that “a money judgment in a civil action is a judgment ‘that orders the payment of a sum of money, as distinguished from an order directing an act to be done or property to be restored or transferred.’”4

A sanctions award, according to Lech, is “properly characterized as an order directing that an act be done.” Moreover, sanctions are awarded in post-judgment proceedings. Consequently, the Lech court concluded that sanctions are not subject to Michigan’s judgment-interest statute.

It remains to be seen whether the defendants in Lech will seek review from the Michigan Supreme Court.

Transcript Pitfalls in the Michigan Court of Appeals

One of the more common mistakes in the Michigan Court of Appeals is ordering only part of the record. This usually occurs when appellants assume that they only need to order transcripts relevant to their appellate issues. The Michigan Court Rules actually impose broader responsibilities, while also providing procedures for departing from these default rules. The key points are summarized below.

  1. The appellant must order the complete record. The Michigan Court Rules place the burden of ordering the complete record squarely on the appellant.5 Specifically, the appellant must “order from the court reporter or recorder the full transcript of testimony and other proceedings in the trial court or tribunal.”6 Appellants may not make their own determination about what is and is not relevant. As stated in the Court’s Internal Operating Procedures, “The appellant is responsible for securing the timely filing of the complete transcript for appeal, not just the transcript(s) that the appellant believes are relevant to the appeal.”7
  2. Cross-appellants are not required to order transcripts. Because the Michigan Court Rules require appellants to order the complete record, cross-appellants are ordinarily not required to order transcripts. The Court of Appeals makes this fact plain in its Internal Operating Procedures: “Note that under MCR 7.207(D), the cross-appellant is not responsible for the production and filing of the transcript unless the appellant abandons the initial appeal or it is dismissed.”8
  3. Appellants are required to provide copies of transcripts to appellees. Appellants are responsible for providing transcripts to appellees. Rule 7.210(F) states: “Within 21 days after the transcript is filed with the trial court clerk, the appellant shall serve a copy of the entire record on appeal, including the transcript and exhibits, on each appellee.”
  4. There are procedures for approving a partial record. An appellant may be excused from the responsibility of ordering a complete record if the parties stipulate, if they agree on a statement of facts, or if the trial court orders that “some portion less than the full transcript . . . be included in the record for appeal.”9 An appellant must secure this order by filing a motion “within the time required for filing an appeal.”10
  5. Appellees have an incentive to be reasonable. It can be tempting for appellees to demand that an appellant order the complete record, even when some transcripts are patently irrelevant to any issues that might arise on appeal. Aside from the usual principles of civility, there is a reason for appellees to stipulate to ordering a partial record. Prevailing parties are often entitled to costs under Michigan Court Rule 7.219, and transcripts are included in recoverable costs. That means there is always a risk that the appellee who forces an appellant to order unnecessary transcripts will ultimately be footing the bill.

These principles apply to most civil appeals—which means it is always a good idea to read Michigan Court Rule 7.210 and the corresponding Internal Operating Procedures for special rules that might apply to particular cases.

1 Lech v Huntmore Estates Condo Ass'n, ___ Mich App ___ (2014) (Docket No. 320028, issued April 16, 2015).
2 Haliw v Sterling Hts, 471 Mich 700; 691 NW2d 753 (2005).
3 Lech, supra.
4 Lech, supra, quoting In re Forfeiture of $176,598, 465 Mich 382, 386; 633 NW2d 367 (2001).
5 MCR 7.210(B)(1).
6 Id. (emphasis added).
7 See IOP 7.210(B)(1) (emphasis in original).
8 IOP 7.210(B)(1)-1.
9 MCR 7.210(C).
10 Id.
Categories: Volume 5 #4

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