Rule 7.101 Procedure Generally
(A) Applicability; Scope.
(1) This rule applies to appeals to the circuit court from the district court and probate court, each referred to as "trial court" in MCR 7.101 and 7.103. The term "circuit court" includes the Recorder's Court of the City of Detroit as to appeals of which that court has jurisdiction. In appeals from probate court, the term "clerk" refers to the probate register.
(2) An order or judgment of a trial court reviewable in the circuit court may be reviewed only by an appeal.
(3) This rule does not restrict or enlarge the right of review provided by law or make an order or judgment reviewable if it is not otherwise reviewable.
(B) Time for Taking Appeal.
(1) Appeal of Right. Except when another time is prescribed by statute or court rule, an appeal of right must be taken within
(a) 21 days after the entry of the order or judgment appealed from; or
(b) 21 days after the entry of an order denying a motion for new trial or judgment notwithstanding the verdict, a motion for rehearing or reconsideration, or a motion for other postjudgment relief, if the motion was filed within the original 21-day period. A motion for rehearing or reconsideration of a motion mentioned in subrule (B)(1)(b) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21-day period.
A motion for rehearing or reconsideration of a motion mentioned in subrule (B)(1)(b) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21-day period.
(2) Appeal by Leave. When an appeal of right is not available, or the time for taking an appeal of right has passed, the time for filing an application for leave to appeal is governed by MCR 7.103.
(C) Manner of Taking Appeal; Appeal of Right.
(1) Claim of Appeal. To appeal of right, within the time for taking an appeal, an appellant must file a claim of appeal with the circuit court clerk and pay the fee, if required by law. The parties are named in the same order as they appeared in the trial court, but with the added designation "appellant" or "appellee." The claim must state:
The appellant or the appellant's attorney must date and sign the claim of appeal and place his or her business address and telephone number under the signature.
(2) Other Requirements. In addition to doing the acts required by subrule (C)(1), no later than the time the claim of appeal is filed, the appellant must do the following:
(a) File in the trial court copies of the claim of appeal and of the judgment or order appealed from;
(b) File in the trial court a bond for costs on appeal unless the appellant has filed a stay bond that includes security for costs or unless the appellant is exempt or excused from filing a bond or bond is waived under MCR 3.604(L). This subrule does not, however, apply to civil infraction actions, criminal cases, or summary proceedings for the possession of premises.
(i) The bond must be in the amount of $200, unless the trial court sets another amount.
(ii) The bond must have at least one surety, unless the court excuses this requirement under MCR 3.604(L).
(iii) The bond must be on the condition that the appellant will pay the costs under subrule (O) and the damages under subrule (P) awarded on appeal.
(iv) Objections to the bond or surety are governed by MCR 3.604.
(c) Deliver or deposit money, property, or documents and do other acts required by law.
(d) Order in writing a copy of the full transcript and secure payment for it. On the appellant's motion, with notice to the appellee, the trial court may order that a lesser portion, or none, of the proceedings be transcribed. The appellee may file with the trial court a transcript of a portion of the proceedings not filed by the appellant. Except in appeals that the circuit court hears de novo, if a transcript of relevant proceedings cannot be obtained, the appellant may initiate procedures for preparation of a settled record in the manner provided in MCR 7.210(B)(2).
(e) File in the trial court exhibits in the appellant's possession.
(3) Notice and Proof of Service. Within 7 days after the claim of appeal is filed, the appellant must serve on the appellee and on any other person entitled by rule or statute to notice of the appeal:
(a) a copy of the claim of appeal;
(b) a statement specifying
(i) when an appeal bond, if any, was filed, the amount of the bond, and the sureties,
(ii) when the required fees were paid,
(iii) when an act was performed under subrule (C)(2)(c) and the nature of the act;
(c) a copy of the reporter's or recorder's certificate showing that
(i) the transcript has been ordered and payment secured, with the estimated date of completion,
(ii) the transcript has been furnished, or
(iii) there is no record to be transcribed.
Proof of service, the reporter's or recorder's certificate, and the required statement must be filed in the trial court and the circuit court.
(D) Appellee's Appearance; Cross Appeal.
(1) Notice of Appearance. Within 14 days after being served with the claim of appeal, the required statement, and the reporter's or recorder's certificate, the appellee must file an appearance in the trial court and circuit court and file exhibits in his or her possession with the trial court clerk.
(2) Cross Appeal. The appellee may take a cross appeal by filing a claim of cross appeal with his or her appearance. The provisions of this rule regarding an appeal govern a cross appeal.
(E) Effect of Appeal. The circuit court clerk shall assign a file number to an appeal when it is filed. The trial court retains jurisdiction until the trial court clerk sends the record to the circuit court clerk under subrule (F).
(F) Record on Appeal.
(1) Within 28 days after filing the claim of appeal, the appellant must file with the trial court the transcript or a copy of the reporter's or recorder's certificate and a statement that the transcript is not yet available.
(2) After the appellant makes the filing under subrule (F)(1), the clerk or register of the trial court shall
(a) ensure that the docket entries are correct and ready for transmittal;
(b) ensure that all exhibits have been filed;
(c) ensure that all relevant documents and papers from the court file are ready for transmittal; and
(d) determine that the required fees have been paid and required bond filed.
(3) If the record is ready for transmittal, the court shall sign an order transmitting the record. The trial court may eliminate exhibits from the record.
(4) If the transcript is not yet available, the trial court shall postpone transmittal of the record, enter an order to facilitate the preparation of the record, and notify the circuit court of the postponement and of the estimated date of transmittal.
(5) The trial court clerk must send the record to the circuit court clerk and notify the parties of the transmittal.
(G) Dismissal of an Appeal. If an appellant does not comply with subrule (C)(2) or (F)(1), the appeal may be considered abandoned, and the trial court may dismiss the appeal on 7 days' notice to the parties, unless the trial court or circuit court has granted a motion for further time. The trial court clerk must promptly notify the circuit court of a dismissal, and the circuit court shall dismiss the claim of appeal. Compliance with subrule (F)(1) after the 28-day period does not preclude dismissal of the appeal unless the appellant shows a reasonable excuse for the late compliance.
(H) Stay of Proceedings.
(1) Civil Actions.
(a) Unless otherwise provided by rule or ordered by the trial court, an execution may not issue and proceedings may not be taken to enforce an order or judgment until the expiration of the time for taking an appeal under subrule (B).
(b) An appeal does not stay execution unless
(i) the appellant files a stay bond to the opposing party as provided by this rule or by law; or
(ii) the appellant is exempted by law from filing a bond or is excused from filing a bond under MCL 600.2605 or MCR 3.604(L) and the trial court grants a stay on motion.
(c) The stay bond must be set by the trial court in an amount adequate to protect the opposing party. If the appeal is by a person against whom a money judgment has been entered, it must be not less than 1 1/4 times the amount of the judgment. The bond must:
(i) recite the names and designations of the parties and the judge in the trial court, identify the parties for whom and against whom judgment was entered, and state the amount recovered;
(ii) contain the conditions that the appellant
(A) will diligently prosecute the appeal to a decision and, if a judgment is rendered against him or her, will pay the amount of the judgment, including costs and interest;
(B) will pay the amount of the judgment, if any, rendered against him or her in the trial court, including costs and interest, if the appeal is dismissed;
(C) will pay any costs assessed against him or her in the circuit court; and
(D) will perform any other act prescribed in the statute authorizing appeal; and
(iii) be executed by the appellant with one or more sufficient sureties as required by MCR 3.604.
If the appeal is from a judgment for the possession of land, the bond must include the conditions provided in MCR 4.201(N)(4).
(d) Unless otherwise provided in this rule, the filing of a bond stays all further proceedings in the trial court under the order or judgment appealed from. If an execution has issued, it is suspended by giving notice of the bond to the officer holding the execution.
(2) Probate Proceedings.
(a) The probate court has continuing jurisdiction to decide other matters arising out of a proceeding in which an appeal is filed.
(b) A stay in an appeal from the probate court is governed by MCL 600.867 and MCR 5.802(C).
(3) Civil Infractions. An appeal bond and stay in a civil infraction proceeding is governed by MCR 4.101(G).
(4) Criminal Cases. Unless a bond pending appeal is filed with the trial court, a criminal judgment may be executed immediately even though the time for taking an appeal has not elapsed. The granting of bond and the amount of it are within the discretion of the trial court, subject to the applicable laws and rules on bonds pending appeals in criminal cases.
(5) Request for Stay Filed in Circuit Court. If a request for a stay pending appeal is filed in the circuit court, the court may condition a stay on the filing of a new or higher bond than otherwise required by these rules with appropriate conditions and sureties satisfactory to the court.
(I) Filing and Service of Briefs.
(1) Within 21 days after the trial court clerk notifies the parties that the record on appeal has been sent to the circuit court, the appellant must file a brief in the circuit court and serve it on the appellee. The appellee may file and serve a reply brief within 21 days after the appellant's brief is served on the appellee. The appellant's brief must comply with MCR 7.212(C), and the appellee's brief must comply with MCR 7.212(D).
(2) Before the brief is due, a party may withdraw the transcript and exhibits by giving the clerk a written receipt for them. A party may use them only to prepare the brief and must return them to the clerk when the party is finished. The court may order their return by a specified date.
(J) Dismissal for Failure to File Brief. If an appellant does not file a brief within the time provided by subrule (I)(1) and neither the trial court nor the circuit court has granted a motion for further time, the appeal may be considered abandoned, and the circuit court may dismiss the appeal on 7 days' notice to the parties. The circuit court clerk must promptly notify the trial court of a dismissal. Compliance with subrule (I)(1) after the 21-day period does not preclude dismissal of the appeal unless the appellant shows a reasonable excuse for the late filing.
(K) Oral Argument. A party who has filed a timely brief is entitled to oral argument by writing "ORAL ARGUMENT REQUESTED" in boldface type on the title page of the party's brief.
(L) Setting for Hearing. Within 14 days after the appellee's brief is filed or within 14 days after the time for filing it has expired, the circuit court clerk shall
(1) schedule the case for argument and notify the parties by mail, if a party has requested oral argument; or
(2) if no party has requested oral argument, submit the file to the judge to whom the appeal is assigned for decision.
(M) Judgment in Circuit Court; Process. After the appeal is decided or dismissed, the circuit court clerk shall promptly send to the trial court clerk a copy of the judgment, order, or opinion entered in the circuit court and all documents previously received from the trial court. The trial court issues further process.
(N) Control of Appeal Process.
(1) If the trial court postpones transmittal of the record or transmittal is otherwise delayed, the circuit court may on its own initiative exercise superintending control over the trial court, the court reporter or recorder, or other personnel to prevent delay.
(2) The circuit court may on the appellee's motion or its own initiative issue an order to show cause why the appeal should not be dismissed. An order to show cause is not required for a dismissal under subrules (G) or (J).
(3) A party may obtain interlocutory review of the appellate process by filing a motion in the circuit court under the rules governing motion practice.
(4) The circuit court may accelerate the appellate process on a party's motion.
(O) Costs. Costs in an appeal to the circuit court may be taxed as provided in MCR 2.625. A prevailing party may tax only the reasonable costs incurred in the appeal, including:
(1) the cost of an appeal or stay bond;
(2) the transcript;
(3) documents required for the record on appeal;
(4) fees paid to the clerk or to the trial court clerk incident to the appeal;
(5) taxable costs allowed by law in appeals to the Supreme Court (MCL 600.2441); and
(6) other expenses taxable under applicable court rules or statutes.
(P) Vexatious Proceedings.
(1) The circuit court may, on its own initiative or the motion of a party, dismiss an appeal, assess actual and punitive damages, or take other disciplinary action when it determines that an appeal or any of the proceedings in an appeal was vexatious because
(a) the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal; or
(b) a pleading, motion, argument, brief, document, or record filed in the case or any testimony presented in the case was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.
(2) Damages may not exceed actual damages and expenses incurred by the opposing party because of the vexatious appeal or proceedings, including reasonable attorney fees, and punitive damages in an added amount not exceeding actual damages.
(Current as of 06/30/2006)
Rule 7.102 Appeals From Municipal Courts
(A) Time for Taking Appeal. To appeal of right from a municipal court, an appellant must comply with MCR 7.101(B) and (C)(1).
(B) Procedure on Appeal. Except when inapplicable because of subrule (C), MCR 7.101 governs procedure on appeal.
(C) Review in Circuit Court. Review in the circuit court is a retrial of the issues on evidence introduced in the circuit court. Depositions in the trial court may be used. The circuit court may render any judgment or enter any order that should have been rendered or entered in the trial court, and may grant other relief as may be required for the just disposition of the appeal.
(Current as of 06/30/2006)
Rule 7.103 Application for Leave to Appeal
(A) Availability. The circuit court may grant leave to appeal from a trial court or municipal court when
(1) no appeal of right exists, or
(2) the time for taking an appeal under MCR 7.101(B)(1) has expired.
(B) Procedure.
(1) Except when another time is prescribed by statute, an application for leave to appeal must be filed within 21 days after the entry of the judgment or order appealed from.
(2) The application must state the grounds for the appeal and describe the proceedings in the trial court.
(3) A copy of the application must be filed with the trial court and served on the appellee. If service cannot reasonably be accomplished, the appellant may ask the circuit court to prescribe service under MCR 2.107(E).
(4) The application must be noticed for hearing in the circuit court at least 14 days after its filing. The circuit court may shorten the notice period on a showing of a need for immediate consideration.
(5) The circuit court shall consider the merit of the grounds for the appeal and enter an order granting or denying leave to appeal.
(6) An application under subrule (A)(2) or an application that is not timely under subrule (B)(1), must be accompanied by an affidavit explaining the delay. The circuit court may consider the length of and the reasons for the delay in deciding whether to grant the application. A delayed application may not be filed more than 6 months after entry of the order or judgment on the merits.
(C) Leave to Appeal Granted. Immediately after an order granting leave to appeal is entered, the appellant must file a copy with the trial court and serve a copy on the appellee. MCR 7.101 governs further proceedings, except that:
(1) the appellant must perform the acts required by MCR 7.101(C) within 7 days after the entry of the order granting leave to appeal; however, filing and service of a claim of appeal are not required;
(2) an appellee may file a claim of cross appeal within 14 days after service of the order granting leave to appeal; and
(3) the appellant must perform the acts required by MCR 7.101(F)(1) within 28 days after the entry of the order granting leave to appeal.
(Current as of 06/30/2006)
Rule 7.104 Appeals From Administrative Agencies
(A) Appeals Under MCL 600.631. An appeal in the circuit court under MCL 600.631 is governed by MCR 7.101 and 7.103, except that the bond requirements do not apply.
(B) Appeals Under Michigan Employment Security Act.
(1) To obtain review of an order or decision of the Michigan Employment Security Board of Review, a party must file in the circuit court
(a) a claim of appeal within 30 days after the mailing to the party of the board of review's decision (see MCR 7.101[C][1]); and
(b) proof that a copy was served on the board of review and all interested parties.
The board of review is not an appellee. The timely filing of the claim of appeal constitutes the taking of an appeal. Failure to take any further steps to pursue the appeal is governed by MCR 7.101(G), (J), and (N).
(2) Within 14 days after service of the claim of appeal, the appellee must file an appearance in the circuit court. A cross appeal may be filed with the appearance. See MCR 7.101(D).
(3) Within 42 days after the claim of appeal is served on the board of review or within further time the circuit court allows, the board of review must send to the circuit court clerk a certified copy of the record of proceedings before the referee and the board of review and notify the parties of the transmittal.
(4) The appeal is heard by the circuit court on the certified record. Briefs and oral argument are governed by MCR 7.101(I), (K), and (L).
(D) Appeals From Michigan Parole Board.
(a) An application for leave to appeal may be filed within 28 days after the parole board mails to the prosecutor and the victim, if the victim has requested notification under MCL 780.771, a notice of action granting parole and a copy of any written opinion. Upon request, the prisoner, the prosecutor, and the victim may receive the parole eligibility report and any prior parole eligibility reports that are mentioned, and any parole guidelines that support the action taken. An order of parole shall not be issued under MCL 791.236 until 28 days after the mailing of the notice of action.
(b) A delayed application for leave to appeal may be filed under MCR 7.103(B)(6).
(c) Timely service of an application for leave to appeal must be made on the parole board and the prisoner. When the victim is appealing, timely service of the application also must be made on the prosecutor. When the prosecutor is appealing, timely service of the application also must be made on the victim, if the victim has requested notification under MCL 780.771.
(i) The parole board shall be served by sending a copy of the application for leave to appeal and any supporting documents, by registered or certified mail, return receipt requested, to the parole board's office of record. A copy of the return receipt signed by an agent of the parole board must be attached to the proof of service.
(ii) The prosecutor shall be served by sending a copy of the application for leave to appeal and any supporting documents, by registered or certified mail, return receipt requested, to the office of the prosecuting attorney of the sentencing county. A copy of the return receipt signed by an agent of the prosecutor must be attached to the proof of service.
(iii) The prisoner shall be served by sending a copy of the application for leave to appeal and any supporting documents, by registered or certified mail, return receipt requested, to the facility where the prisoner is incarcerated, with instructions to the person in charge of the facility, or a designee, to personally serve the prisoner. A copy of the return of service executed by the appropriate prison official must be filed with the clerk of the court.
In addition to the pleadings, service on the prisoner must include a notice, in a form approved by the State Court Administrative Office, advising the prisoner that
[B] if an order of parole is issued under MCL 791.236 before completion of appellate proceedings, a stay may be granted in the manner provided by MCR 7.105(G), except that no bond is required.
(a) The circuit court shall determine promptly whether to grant leave to appeal.
(b) The circuit court must make its determination within 28 days after the application for leave to appeal is filed. If the court does not make a determination within that time, the court shall enter an order to produce the prisoner before the court for a show cause hearing to determine whether the prisoner should be released on parole pending disposition of the appeal.
(a) no bond is required;
(b) the expense of preparing and serving the parole board's evidentiary materials for the appeal may be taxed to a non-prevailing appellant, except that expenses may not be taxed to an indigent party;
(c) the record on appeal shall consist of the prisoner's central office file at the Department of Corrections, and any other documents considered by the parole board in reaching its decision. Within 14 days after being served with an order granting leave to appeal, the parole board shall send copies of the record to the circuit court and the other parties; and
(d) within 28 days after the parties receive a copy of the record, the appellant must file a brief in the circuit court and serve it on the appellee. The appellee may file and serve a reply brief within 21 days after the appellant's brief is served on the appellee.
(a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or
(b) a clear abuse of discretion.
(Current as of 06/30/2006)
Rule 7.105 Appeals From Administrative Agencies in "Contested Cases"
(A) Definitions. As used in this rule:
(1) "Agency" means a state department, bureau, division, section, board, commission, trustee, authority or officer created by the constitution, statute, or agency action, from whose decision in a contested case an appeal to the circuit court is authorized by law. It does not include an agency in the legislative or judicial branches of government, the Governor, the Bureau of Workmen's Compensation, the Workers' Compensation Appeal Board, a Michigan employment security hearing referee, or the Michigan Employment Security Board of Review.
(2) "Contested case" means a proceeding including but not limited to ratemaking, price fixing, and licensing, in which determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing. An appeal of one agency's decision to another agency is a continuous proceeding as though before a single agency.
(3) "Court" means the circuit court.
(4) "Decision" means either a final determination, opinion, or order of an agency in a contested case, or a preliminary, procedural, or intermediate agency action or ruling.
(B) Scope.
(1) This rule governs an appeal to the circuit court from an agency decision in a contested case, except when a statute requires a different procedure. A petitioner intending to rely on a different procedure permitted by statute shall identify the statutory procedure in the petition for review. Failure to do so waives the right to use the different procedure.
(2) The court need not dismiss an action incorrectly initiated under some other rule, if it is timely filed and served as required by this rule and the applicable statute. Instead, leave may be freely given, when justice requires, to amend an appeal and a response to conform to the requirements of this rule and otherwise proceed under this rule.
(C) Form; Content; Attachment of Decision. Judicial review of an agency decision in a contested case is initiated by filing, within the time required by the applicable statute, a document entitled "Petition for Review," conforming to the following form, content, and attachment requirements.
(1) Form.
(a) A petition for review is captioned in the circuit court, and shall otherwise conform to the requirements of MCR 2.113.
(c) The petition for review must state:
(d) The petitioner or petitioner's attorney, must date and sign the petition for review and place his or her business address and telephone number under the signature.
(2) Content. The petition for review must contain a concise statement of:
(a) the nature of the proceedings as to which review is sought, including the authority under which the proceedings were conducted, and any statutory authority for review;
(b) the facts on which venue is based;
(c) the grounds on which relief is sought, stated in as many separate paragraphs as there are separate grounds alleged;
(d) the relief sought.
(3) Attachment. The petitioner shall attach to the petition for review, as an exhibit, a copy of the agency decision of which review is sought, or explain why it is not attached.
(D) Service. Promptly after filing the petition for review, the petitioner shall serve true copies of the petition for review on the agency, the Attorney General, and all other parties to the contested case in the manner provided by MCR 2.107, and promptly file proof of service with the court.
(E) Interlocutory Review. A preliminary procedural or intermediate agency action or ruling is not immediately reviewable, except that a court may grant interlocutory review of a preliminary, procedural, or intermediate decision by an agency only on a showing that review of the final decision would not be an adequate remedy.
(1) A petition for review must be filed with the court within 14 days of the contested decision.
(2) The petition must follow the form, content, and attachment requirements of subrule (C), with the following additional requirements:
(a) the petition must be entitled "Petition for Interlocutory Review";
(b) the grounds for relief must set forth why review of the agency's final decision will not be an adequate remedy;
(c) the relief sought must include a prayer that the court grant leave to the petitioner to file a petition for review.
(3) If the petition is granted by the court, the appeal thereafter proceeds under this rule in the same manner as appeals from final decisions, unless a particular provision of the rule specifically states otherwise.
(F) Answer. A respondent may file an answer to a petition for review. A court may require an answer.
(G) Stay of Enforcement.
(1) The filing of a petition for review does not stay enforcement of the decision or order of which review is sought. The court may order a stay on appropriate terms and conditions only:
(a) after hearing on the written motion for stay that is supported by affidavit and states with particularity the grounds therefor;
(b) on finding:
(i) that the applicant will suffer irreparable injury if a stay is not entered;
(ii) that the applicant has made a strong showing that it is likely to prevail on the merits;
(iii) that the public interest will not be harmed if a stay is granted; and
(iv) that the harm to the applicant in the absence of a stay outweighs the harm to other parties to the proceedings if a stay is granted; and
(c) on the filing by the applicant of a bond in the amount required by any applicable statute authorizing the appeal or, in the absence of a statute, in an amount and with sureties the court may deem adequate to protect the public and other parties, conditioned:
(i) to prosecute the review to a decision and to obey and act in accordance with the decision or order as may be rendered by the court;
(ii) to obey and act in accordance with the order or decision if it is not set aside or revised.
(2) The court may grant a temporary stay of enforcement without written notice to the respondent only if it clearly appears from specific facts shown by affidavit that immediate and irreparable injury will result if a stay is not entered before the respondent can be heard and only if the petitioner's attorney certifies to the court in writing that efforts have been made to contact the respondent and the respondent's attorney, if known, and stating that those efforts were unsuccessful. The court may use an appropriate method to communicate with a respondent regarding an application for stay of enforcement without written notice.
A temporary stay may be granted by the court only until a hearing on a motion or order to show cause required by subrule (G)(1). A hearing on a motion to dissolve a temporary stay will be heard on 24 hours' notice, or less on order of the court for good cause shown, and takes precedence over all matters except previously filed matters of the same character.
(3) An order granting a stay of enforcement is subject to the requirements, procedures, and limitations of MCR 3.310(C), (F), and (G).
(4) For the purpose of subrule (G), the agency shall be considered a respondent, whether or not it has filed an appearance.
(H) Stipulations. The parties may stipulate in writing regarding any matter relevant to the petition for review or the record below or any part of the record if the stipulation is made part of the record and transmitted to the court.
(I) Additional Evidence. An application to present proofs of alleged irregularity in procedure before the agency, or to allow the taking of additional evidence before the agency, is timely only if it is filed with or included in the petition for review. The petitioner shall promptly notice the request for hearing in the manner for notice of hearing of motions. If the court orders the taking of additional evidence, the time for filing briefs is stayed until the taking of the evidence is completed.
(J) Motion to Dismiss or Affirm or for Peremptory Reversal.
(1) In addition to any other relief available under this rule, the respondent may file a motion to dismiss or affirm accompanied by a brief in support of it. When appropriate, a motion to affirm may be joined in the alternative with a motion to dismiss.
(2) A motion to dismiss an appeal may be made by a respondent on the ground that:
(a) the appeal is not within the jurisdiction of the court;
(b) the appeal was not taken or pursued in conformity with the rules, or a special statutory review procedure;
(c) the petitioner has failed to exhaust administrative remedies;
(d) the appeal is moot.
(3) A motion to affirm may be made by a respondent on the ground that:
(a) it is manifest that the question or questions sought to be reviewed on which the decision of the case depends are so unsubstantial as to need no argument or formal submission;
(b) the question or questions sought to be reviewed were not timely or properly raised, if the petitioner is required by law to have raised the question or questions at an earlier time.
(4) The petitioner may file a motion for peremptory reversal on the ground that error requiring reversal is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission.
(5) A party has 14 days after service of a motion to dismiss, to affirm, or for peremptory reversal in which to file a brief opposing the motion.
(6) On the filing of the brief in opposition to a motion to dismiss, to affirm, or for peremptory reversal, or after the expiration of the time for filing the brief, whichever is earlier, the clerk shall submit the motion and briefs for decision by the court. After consideration of the motion, the court shall enter an appropriate order. Unless otherwise ordered by the court, the filing of a motion to dismiss, to affirm, or for peremptory reversal does not extend the time for taking any steps required by this rule.
(K) Briefs and Arguments.
(1) Within 28 days after the record is filed with the court (see MCL 24.304[2]), the petitioner shall file with the court its brief, in the form provided in MCR 7.212(C), serve a copy on all respondents, and promptly file proof of that service with the court. Within 28 days after petitioner's brief is served, each respondent shall file with the court its brief, in the form provided in MCR 7.212(D), serve a copy on all other parties, and promptly file proof of that service with the court. The petitioner may file and serve a reply brief within 14 days after service of the respondent's brief. A 28-day extension of the time for filing a brief may be obtained on written stipulation of the parties or by order of the court. Further extension of time for filing of a brief can be obtained only on order of the court on motion for cause shown.
(2) If a party does not timely serve its brief, the court may, after notice and opportunity to respond, enter an appropriate order, including dismissal of a petition for review, or affirmance or reversal of the decision appealed from.
(3) A party who files a timely brief is entitled to oral argument by writing "ORAL ARGUMENT REQUESTED" in boldface type on the title page of the party's brief. However, in cases in which a party is incarcerated, the court need not order the production of that party for argument but instead may order the case to be submitted on briefs.
(4) Within 14 days after the filing of the last brief allowed under subrule (K)(1), or within 14 days after the time for filing it has expired, the court clerk must:
(a) if a party is entitled to oral argument, schedule a hearing and notify the parties by mail; or
(b) if no party has requested oral argument, submit the file to the judge assigned for decision.
(L) Earlier Filing and Serving. For good cause the court may shorten the time for filing and serving either the petitioner's or the respondent's brief or other documents,
(1) on its own motion,
(2) on a motion filed by a party, or
(3) by stipulation of the parties.
(M) Order, Findings, Relief, and Final Process. On completing review the court shall enter a written order. The court may affirm, reverse, remand, or modify the decision of the agency and may grant the petitioner or the respondent further relief as appropriate based on the record, findings, and conclusions. When the court finds that the decision or order of an agency is not supported by competent, material, and substantial evidence on the whole record, the court shall separately state which finding or findings of the agency are so affected. When the court finds that a decision or order of an agency violates the constitution or a statute, is affected by a material error of law, or is affected by unlawful procedure resulting in material prejudice to a party, the court shall state its findings of fact and conclusions of law and the reasons for its conclusions, and identify those conclusions of law of the agency, if any, that are being reversed.
(N) Vexatious Proceedings; Consequences.
(1) The court may, on its own motion or on the motion of any party, dismiss a petition for review, assess punitive damages, or take other disciplinary action when it determines that an appeal or any proceedings in the appeal were vexatious for any of the reasons set forth in MCR 7.101(P)(1).
(2) Punitive damages may not exceed an amount equivalent to the actual or reasonable costs or expenses of the opposing parties, including the reasonable attorney fees.
(O) Delayed Petition for Review. After expiration of the period for seeking judicial review of an agency decision, if the applicable review statute permits a delayed appeal, the court may on application with the affidavit and brief attached, and an evidentiary hearing, grant leave to file a petition for review of a decision on finding that there is merit in the grounds for the application, that the delay was not due to the petitioner's culpable negligence, that the delay has not resulted in any substantial prejudice to any other party, and that the court retains jurisdiction to grant leave. Any other party may file an opposing statement, affidavits, and briefs. On a grant of leave to file a petition for review, the petitioner shall file a petition for review within 21 days and review shall proceed in accordance with this rule.
(Current as of 06/30/2006)
Rule 7.201 Organization and Operation of Court of Appeals
(A) Chief Judge and Chief Judge Pro Tempore.
(1) The Supreme Court shall select a judge of the Court of Appeals to serve as chief judge. No later than October 1 of each odd-numbered year, the Court of Appeals may submit the names of no fewer than two judges whom the judges of that court recommend for selection as chief judge.
(2) The chief judge shall select a chief judge pro tempore, who shall fulfill such functions as the chief judge assigns.
(3) The chief judge and chief judge pro tempore shall serve a two-year term beginning on January 1 of each even-numbered year, provided that the chief judge serves at the pleasure of the Supreme Court and the chief judge pro tempore serves at the pleasure of the chief judge.
(B) Court of Appeals Clerk; Place of Filing Papers; Fees.
(1) The court shall appoint a chief clerk who is subject to the requirements imposed on the Supreme Court clerk in MCR 7.319. The clerk's office must be located in Lansing and be operated under the court's direction. With the court's approval, the clerk may appoint assistant and deputy clerks.
(2) Papers to be filed with the court or the clerk must be filed in the clerk's office in Lansing or with a deputy clerk in Detroit, Troy, or Grand Rapids. Fees paid to a deputy clerk must be forwarded to the clerk's office in Lansing. Claims of appeal, applications, motions, and complaints need not be accepted for filing until all required documents have been filed and the requisite fees have been paid.
(3) If a case is accepted for filing without all of the required documents, transcripts, or fees, the appellant, or the plaintiff in an original action under MCR 7.206, must supply the missing items within 21 days after the date of the clerk's notice of deficiency. The chief judge or another designated judge may dismiss the appeal and assess costs if the deficiency is not remedied within that time.
(C) Sessions of Court. There are 9 regular sessions of the court each year. Except as otherwise required for the efficient administration of the court, each session begins on the first Tuesday during the months of October through June. Each session continues for the number of days necessary to conclude the hearing of cases scheduled for argument. The chief judge may order a special session.
(D) Panels. The court shall sit to hear cases in panels of 3 judges. The decision of a majority of the judges of a panel in attendance at the hearing is the decision of the court. Except as modified by the Supreme Court, a decision of the court is final. The judges must be rotated so that each judge sits with every other judge with equal frequency, consistent with the efficient administration of the court's business. The Supreme Court may assign persons to act as temporary judges of the court, under the constitution and statutes. Only one temporary judge may sit on a 3-judge panel.
(E) Assignments and Presiding Judge. Before the calendar for each session is prepared, the chief judge shall assign the judges to each panel and the cases to be heard by them and designate one of them as presiding judge. A presiding judge presides at a hearing and performs other functions the court or the Supreme Court by rule or special order directs. The chief judge may assign a motion or any other matter to any panel.
(F) Place of Hearing. The court shall sit in Detroit, Lansing, Grand Rapids, and Marquette, or another place the chief judge designates. A calendar case will be assigned for hearing in the city nearest to the court or tribunal from which the appeal was taken or as the parties stipulate, except as otherwise required for the efficient administration of the court's business.
(G) Judicial Conferences. At least once a year and at other times the chief judge finds necessary, the judges shall meet to consider proposals to amend the rules of the court, improve the administration of justice, including the operations of the court, and transact any business which properly comes before them.
(H) Approval of Expenses. The state court administrator shall approve the expenses for operation of the court and the expense accounts of the judges, including attendance at a judicial conference. The state court administrator shall prepare a budget for the court.
(Current as of 06/30/2006)
Rule 7.202 Definitions
For purposes of this subchapter:
(1) "clerk" means the Court of Appeals clerk, unless otherwise stated;
(2) "date of filing" means the date of receipt of a document by a court clerk;
(3) "entry fee" means the fee required by law or, in lieu of that fee, a motion to waive fees or a copy of an order appointing an attorney;
(4) "filing" means the delivery of a document to a court clerk and the receipt and acceptance of the document by the clerk with the intent to enter it in the record of the court;
(5) "custody case" means a domestic relations case in which the custody of a minor child is an issue, an adoption case, or a case in which the juvenile division of probate court has entered an order terminating parental rights or an order of disposition removing a child from the child's home;
(6) "final judgment" or "final order" means:
(a) In a civil case,
(i) the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such an order entered after reversal of an earlier final judgment or order
(ii) an order designated as final under MCR 2.604(B);
(iii) in a domestic relations action, a postjudgment order affecting the custody of a minor,
(iv) a postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law or court rule,
(v) An order denying governmental immunity to a governmental party, including a governmental agency, official, or employee;
(b) In a criminal case,
(i) an order dismissing the case;
(ii) the original sentence imposed following conviction;
(iii) a sentence imposed following the granting of a motion for resentencing;
(iv) a sentence imposed, or order entered, by the trial court following a remand from an appellate court in a prior appeal of right; or
(v) a sentence imposed following revocation of probation.
(Current as of 06/30/2006)
Rule 7.203 Jurisdiction of the Court of Appeals
(A) Appeal of Right. The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:
(1) A final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6), except a judgment or order of the circuit court
(a) on appeal from any other court or tribunal;
(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere;
An appeal from an order described in MCR 7.202(6)(a)(iii)-(v) is limited to the portion of the order with respect to which there is an appeal of right.
(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule;
(B) Appeal by Leave. The court may grant leave to appeal from:
(1) a judgment or order of the circuit court, court of claims, and recorder's court which is not a final judgment appealable of right;
(2) a final judgment entered by the circuit court or the recorder's court on appeal from any other court;
(3) a final order of an administrative agency or tribunal which by law is appealable to or reviewable by the Court of Appeals or the Supreme Court;
(4) any other judgment or order appealable to the Court of Appeals by law or rule;
(5) any judgment or order when an appeal of right could have been taken but was not timely filed.
(C) Extraordinary Writs, Original Actions, and Enforcement Actions. The court may entertain an action for:
(1) superintending control over a lower court or a tribunal immediately below it arising out of an action or proceeding which, when concluded, would result in an order appealable to the Court of Appeals;
(2) mandamus against a state officer (see MCL 600.4401);
(3) habeas corpus (see MCL 600.4304);
(4) quo warranto involving a state office or officer;
(5) any original action required by law to be filed in the Court of Appeals or Supreme Court;
(6) any action to enforce a final order of an administrative tribunal or agency required by law to be filed in the Court of Appeals or Supreme Court.
(D) Other Appeals and Proceedings. The court has jurisdiction over any other appeal or action established by law.
(E) Appeals by Prosecution. Appeals by the prosecution in criminal cases are governed by MCL 770.12, except as provided by MCL 770.3.
(F) Dismissal.
(1) Except when a motion to dismiss has been filed, the chief judge or another designated judge may, acting alone, dismiss an appeal or original proceeding for lack of jurisdiction.
(2) The appellant or plaintiff may file a motion for reconsideration within 21 days after the date of the order of dismissal. The motion shall be submitted to a panel of 3 judges. No entry fee is required for a motion filed under this subrule.
(3) The clerk will not accept for filing a motion for reconsideration of an order issued by a 3-judge panel that denies a motion for reconsideration filed under subrule (2).
(G) Appeals from Orders Granting or Denying Motions for Summary Disposition. Appeals arising solely from orders granting or denying motions for summary disposition under MCR 2.116 are to be processed in accordance with Administrative Order 2004-5.
(Current as of 06/30/2006)
Rule 7.204 Filing Appeal of Right; Appearance
(A) Time Requirements. The time limit for an appeal of right is jurisdictional. See MCR 7.203(A). The provisions of MCR 1.108 regarding computation of time apply. For purposes of subrules (A)(1) and (A)(2), "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.
(1) An appeal of right in a civil action must be taken within
(a) 21 days after entry of the judgment or order appealed from;
(b) 21 days after the entry of an order denying a motion for new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief, if the motion was filed within the initial 21-day appeal period or within further time the trial court may have allowed during that 21-day period;
(c) 14 days after entry of an order of the family division of the circuit court terminating parental rights under the Juvenile Code, or entry of an order denying a motion for new trial, rehearing, reconsideration, or other postjudgment relief from an order terminating parental rights, if the motion was filed within the initial 14-day appeal period or within further time the trial court may have allowed during that period; or
(d) another time provided by law.
If a party in a civil action is entitled to the appointment of an attorney and requests the appointment within 14 days after the final judgment or order, the 14-day period for the taking of an appeal or the filing of a postjudgment motion begins to run from the entry of an order appointing or denying the appointment of an attorney. If a timely postjudgment motion is filed before a request for appellate counsel, the party may request counsel within 14 days after the decision on the motion.
(2) An appeal of right in a criminal case must be taken
(a) in accordance with MCR 6.425(F)(3);
(b) within 42 days after entry of an order denying a timely motion for the appointment of a lawyer pursuant to MCR 6.425(F)(1);
(c) within 42 days after entry of the judgment or order appealed from; or
(d) within 42 days after the entry of an order denying a motion for a new trial, for judgment of acquittal, or for resentencing, if the motion was filed within the time provided by 6.419(B), 6.429(B)(1), or 6.431(A)(1), as the case may be.
A motion for rehearing or reconsideration of a motion mentioned in subrules (A)(1)(b) or (A)(2)(d) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21- or 42-day period.
(3) Where service of the judgment or order on appellant was delayed beyond the time stated in MCR 2.602, the claim of appeal must be accompanied by an affidavit setting forth facts showing that the service was beyond the time stated in MCR 2.602. Appellee may file an opposing affidavit within 14 days after being served with the claim of appeal and affidavit. If the Court of Appeals finds that service of the judgment or order was delayed beyond the time stated in MCR 2.602 and the claim of appeal was filed within 14 days after service of the judgment or order, the claim of appeal will be deemed timely.
(B) Manner of Filing. To vest the Court of Appeals with jurisdiction in an appeal of right, an appellant shall file with the clerk within the time for taking an appeal
(1) the claim of appeal, and
(2) the entry fee.
(C) Other Documents. With the claim of appeal, the appellant shall file the following documents with the clerk:
(1) a copy of the judgment or order appealed from;
(2) a copy of the certificate of the court reporter or recorder filed under subrule (E)(4), a statement by the attorney that the transcript has been ordered (in which case the certificate of the court reporter or recorder must be filed as soon as possible thereafter), or a statement by the attorney that there is no record to be transcribed;
(3) proof that a copy of the claim of appeal was served on all other parties in the case and on any other person or officer entitled by rule or law to notice of the appeal;
(4) if the appellant has filed a bond, a true copy of the bond;
(5) a copy of the register of actions of the lower court, tribunal, or agency; and
(6) a jurisdictional checklist on a form provided by the clerk's office.
(D) Form of Claim of Appeal.
(1) A claim of appeal is entitled "In the Court of Appeals." The parties are named in the same order as they appear in the trial court, with the added designation "appellant" or "appellee" as appropriate. The claim must be substantially in the following form:
(2) The claim of appeal must be dated and signed, and must list the appropriate business address and telephone number under the signature.
(3) If the case involves
(a) a contest as to the custody of a minor child, or
(b) a ruling that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branch of state government is invalid,
that the fact must be stated in capital letters on the claim of appeal. In an appeal specified in subrule (D)(3)(b), the Court of Appeals shall give expedited consideration to the appeal, and, if the state or an officer or agency of the state is not a party to the appeal, the Court of Appeals shall send copies of the claim of appeal and the judgment or order appealed from to the the Attorney General.
(E) Trial Court Filing Requirements. Within the time for taking the appeal, the appellant shall file in the court or the tribunal from which the appeal is taken
(1) a copy of the claim of appeal;
(2) any fee required by law;
(3) any bond required by law as a condition for taking the appeal; and
(4) unless there is no record to be transcribed, the certificate of the court reporter or recorder stating that a transcript has been ordered and payment for it made or secured, and that it will be filed as soon as possible or has already been filed.
(F) Other Requirements. Within the time for taking the appeal, the appellant shall also
(1) make any delivery or deposit of money, property, or documents, and do any other act required by the statute authorizing the appeal, and file with the clerk an affidavit or other evidence of compliance;
(2) serve on all other parties in the case and on any other person or officer entitled by rule or law to notice of the appeal a copy of the claim of appeal and a copy of any bond filed under subrule (C)(4).
(G) Appearance. Within 14 days after being served with the claim of appeal, the appellee shall file an appearance (identifying the individual attorneys of record) in the Court of Appeals and in the court or tribunal from which the appeal is taken. An appellee who does not file a timely appearance is not entitled to notice of further proceedings until an appearance is filed.
(H) Docketing Statement. In all civil appeals, within 28 days after the claim of appeal is filed, the appellant must file two copies of a docketing statement with the clerk of the Court of Appeals and serve a copy on the opposing parties.
(1) Contents. The docketing statement must contain the information required from time to time by the Court of Appeals through the office of the Chief Clerk on forms provided by the Clerk's office and must set forth:
(a) the nature of the proceeding;
(b) the date of entry of the judgment or order sought to be reviewed as defined in MCR 7.204(A) or MCR 7.205(A), and whether the appeal was timely filed and is within the court's jurisdiction;
(c) a concise, accurate summary of all facts material to consideration of the issues presented, but transcripts are not required at this stage;
(d) the issues presented by the appeal, including a concise summary of how they arose and how they were preserved in the trial court. General conclusory statements such as, "the judgment of the trial court is not supported by the law or the facts," will not be accepted;
(e) a reference to all related or prior appeals, and the appropriate citation, if any.
(2) Amendment. The Court of Appeals may, upon motion and good cause shown, allow for the amendment of the docketing statement.
(3) Cross Appeals. A party who files a cross appeal shall file a docketing statement in accordance with this rule within 28 days after filing the cross appeal.
(4) Dismissal. If the appellant fails to file a timely docketing statement, the chief judge may dismiss the appeal pursuant to MCR 7.217.
(Current as of 06/30/2006)
Rule 7.205 Application for Leave to Appeal
(A) Time Requirements: An application for leave to appeal must be filed within 21 days after entry of the judgment or order to be appealed from or within other time as allowed by law or rule. For purposes of this rule, "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.
(B) Manner of Filing. To apply for leave to appeal, the appellant shall file with the clerk:
(1) 5 copies of an application for leave to appeal (one signed), stating the date and nature of the judgment or order appealed from; concisely reciting the appellant's allegations of error and the relief sought; setting forth a concise argument, conforming to MCR 7.212(C), in support of the appellant's position on each issue; and, if the order appealed from is interlocutory, setting forth facts showing how the appellant would suffer substantial harm by awaiting final judgment before taking an appeal;
(2) 5 copies of the judgment or order appealed from, of the register of actions of the lower court, tribunal, or agency, of the opinion or findings of the lower court, tribunal, or agency, and of any opinion or findings reviewed by the lower court, tribunal, or agency.
(3) if the appeal is from an administrative tribunal or agency, or from a circuit court on review of an administrative tribunal or agency, evidence that the tribunal or agency has been requested to send its record to the Court of Appeals;
(4) 1 copy of certain transcripts, as follows:
(a) in an appeal relating to the evidence presented at an evidentiary hearing in a civil or criminal case, the transcript of the evidentiary hearing, including the opinion or findings of the court which conducted the hearing;
(b) in an appeal from the circuit court or recorder's court after an appeal from another court, the transcript of proceedings in the court reviewed by the circuit court or recorder's court;
(c) in an appeal challenging jury instructions, the transcript of the entire charge to the jury;
(d) in an appeal from a judgment in a criminal case entered pursuant to a plea of guilty or nolo contendere, the transcripts of the plea and sentence;
(e) in an appeal from an order granting or denying a new trial, such portion of the transcript of the trial as, in relation to the issues raised, permits the court to determine whether the trial court's decision on the motion was for a legally recognized reason and based on arguable support in the record;
(f) in an appeal raising a sentencing issue, the transcript of the sentencing proceeding and the transcript of any hearing on a motion relating to sentencing;
(g) in an appeal raising any other issue, such portion of the transcript as substantiates the existence of the issue, objections or lack thereof, arguments of counsel, and any comment or ruling of the trial judge.
If the transcript is not yet available, or if there is no record to be transcribed, the appellant shall file a copy of the certificate of the court reporter or recorder or a statement by the appellant's attorney as provided in MCR 7.204(C)(2). The appellant must file the transcript with the Court of Appeals as soon as it is available.
(5) if the appeal is from a probate court order, 5 copies of the probate court's certification of the issue, as required by law;
(6) proof that a copy of the filed documents was served on all other parties; and
(7) the entry fee.
(C) Answer. Any other party in the case may file with the clerk, within 21 days of service of the application,
(1) 5 copies of an answer to the application (one signed) conforming to MCR 7.212(D), except that transcript page references are not required unless a transcript has been filed; and
(2) proof that a copy was served on the appellant and any other appellee.
(D) Decision.
(1) There is no oral argument. The application is decided on the documents filed and, in an appeal from an administrative tribunal or agency, the certified record.
(2) The court may grant or deny the application; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court, tribunal, or agency whose order is being appealed. The clerk shall enter the court's order and mail copies to the parties.
(3) If an application is granted, the case proceeds as an appeal of right, except that the filing of a claim of appeal is not required and the time limits for the filing of a cross appeal and for the taking of the other steps in the appeal, including the filing of the docketing statement (28 days), and the filing of the court reporter's or recorder's certificate if the transcript has not been filed (14 days), run from the date the order granting leave is certified.
(4) Unless otherwise ordered, the appeal is limited to the issues raised in the application and supporting brief.
(E) Emergency Appeal.
(1) If the order appealed requires acts or will have consequences within 56 days of the date the application is filed, appellant shall alert the clerk of that fact by prominent notice on the cover sheet or first page of the application, including the date by which action is required.
(2) When an appellant requires a hearing on an application in less than 21 days, the appellant shall file and serve a motion for immediate consideration, concisely stating facts showing why an immediate hearing is required. A notice of hearing of the application and motion or a transcript is not required. An answer may be filed within the time the court directs. If a copy of the application and of the motion for immediate consideration are personally served under MCR 2.107(C)(1) or (2), the application may be submitted to the court immediately on filing. If mail service is used, it may not be submitted until the first Tuesday 7 days after the date of service, unless the party served acknowledges receipt. In all other respects, submission, decision, and further proceedings are as provided in subrule (D).
(F) Late Appeal.
(1) When an appeal of right or an application for leave was not timely filed, the appellant may file an application as prescribed in subrule (B), file 5 copies of a statement of facts explaining the delay, and serve 1 copy on all other parties. The answer may challenge the claimed reasons for delay. The court may consider the length of and the reasons for delay in deciding whether to grant the application. In all other respects, submission, decision, and further proceedings are as provided in subrule (D).
(2) In a criminal case, the defendant may not file an application for leave to appeal from a judgment of conviction and sentence if the defendant has previously taken an appeal from that judgment by right or leave granted or has sought leave to appeal that was denied.
(3) Except as provided in subrule (F)(4), leave to appeal may not be granted if an application for leave to appeal is filed more than 12 months after the later of:
(a) entry of a final judgment or other order that could have been the subject of an appeal of right under MCR 7.203(A), but if a motion described in MCR 7.204(A)(1)(b) was filed within the time prescribed in that rule, then the 12 months are counted from the time of entry of the order denying that motion; or
(b) entry of the order or judgment to be appealed from, but if a motion for new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief was filed within the initial 21-day appeal period or within further time the trial court may have allowed during that 21-day period, then the 12 months are counted from the entry of the order denying the motion.
(4) The limitation provided in subrule (F)(3) does not apply to an application for leave to appeal by a criminal defendant if the defendant files an application for leave to appeal within 21 days after the trial court decides a motion for a new trial, for directed verdict of acquittal, to withdraw a plea, or to correct an invalid sentence, if the motion was filed within the 6-month period prescribed in MCR 6.310(C), MCR 6.419(B), MCR 6.429(B), and MCR 6.431(A), or if
(a) the defendant has filed a delayed request for the appointment of counsel pursuant to MCR 6.425(G)(1) within the 12-month period,
(b) the defendant or defendant's lawyer, if one is appointed, has ordered the appropriate transcripts within 28 days of service of the order granting or denying the delayed request for counsel, unless the transcript has already been filed or has been ordered by the court under MCR 6.425(G)(2), and
(c) the application for leave to appeal is filed in accordance with the provisions of this rule within 42 days after the filing of the transcript. If the transcript was filed before the order appointing or denying the appointment of counsel, the 42-day period runs from the date of that order.
A defendant who seeks to rely on one of the exceptions in subrule (F)(4) must file with the application for leave to appeal an affidavit stating the relevant docket entries, a copy of the register of actions of the lower court, tribunal, or agency, or other documentation showing that the application is filed within the time allowed.
(5) The time limit for late appeals from orders terminating parental rights is 63 days, as provided by MCR 3.993(C)(2).
(G) Certified Concise Statement.
(1) When the Court of Appeals requires a certified concise statement of proceedings and facts, the appellant shall, within 7 days after the order requiring the certified concise statement is certified, serve on all other parties a copy of a proposed concise statement of proceedings and facts, describing the course of proceedings and the facts pertinent to the issues raised in the application, and notice of hearing with the date, time, and place for settlement of the concise statement.
(2) Hearing on the proposed concise statement must be within 14 days after the proposed concise statement and notice is served on the other parties.
(3) Objections to the proposed concise statement must be filed in writing with the trial court and served on the appellant and any other appellee before the time set for settlement.
(4) The trial court shall promptly settle objections to the proposed concise statement and may correct it or add matters of record necessary to present the issues properly. When a court's discretionary act is being reviewed, the trial court may add to the statement its reasons for the act. Within 7 days after the settlement hearing, the trial court shall certify the proposed or a corrected concise statement of proceedings and facts as fairly presenting the factual basis for the questions to be reviewed as directed by the Court of Appeals. Immediately after certification, the trial court shall send the certified concise statement to the Court of Appeals clerk and serve a copy on each party.
(Current as of 06/30/2006)
Rule 7.206 Extraordinary Writs, Original Actions, and Enforcement Actions
(A) General Rules of Pleading. Except as otherwise provided in this rule, the general rules of pleading apply as nearly as practicable. See MCR 2.111-2.114.
(B) Superintending Control, Mandamus, and Habeas Corpus. To the extent that they do not conflict with this rule, the rules in subchapter 3.300 apply to actions for superintending control, mandamus, and habeas corpus.
(C) Quo Warranto. In a quo warranto action, the Attorney General also must be served with a copy of each pleading and document filed in the Court of Appeals. The Attorney General has the right to intervene as a party on either side.
(D) Actions for Extraordinary Writs and Original Actions.
(1) Filing of Complaint. To commence an original action, the plaintiff shall file with the clerk:
(a) 5 copies of a complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b) 5 copies of a supporting brief (one signed) conforming to MCR 7.212(C) to the extent possible;
(c) proof that a copy of each of the filed documents was served on every named defendant and, in a superintending control action, on any other party involved in the case which gave rise to the complaint for superintending control; and
(d) the entry fee.
(2) Answer. The defendant or any other interested party must file with the clerk within 21 days of service of the complaint and any supporting documents or affidavits:
(a) 5 copies of an answer to the complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b) 5 copies of an opposing brief (one signed) conforming to MCR 7.212(D) to the extent possible; and
(c) proof that a copy of each of the filed documents was served on the plaintiff and any other interested party.
(3) Preliminary Hearing. There is no oral argument on preliminary hearing of a complaint. The court may deny relief, grant peremptory relief, or allow the parties to proceed to full hearing on the merits in the same manner as an appeal of right either with or without referral to a judicial circuit or tribunal or agency for the taking of proofs and report of factual findings. If the case is ordered to proceed to full hearing, the time for filing a brief by the plaintiff begins to run from the date the order allowing the case to proceed is certified or the date the transcript or report of factual findings on referral is filed, whichever is later. The plaintiff's brief must conform to MCR 7.212(C). An opposing brief must conform to MCR 7.212(D). In a habeas corpus proceeding, the prisoner need not be brought before the Court of Appeals.
(E) Enforcement of Administrative Tribunal or Agency Orders.
(1) Complaint. To obtain enforcement of a final order of an administrative tribunal or agency, the plaintiff shall file with the clerk within the time limit provided by law:
(a) 5 copies of a complaint (one signed) concisely stating the basis for relief and the relief sought;
(b) 5 copies of the order sought to be enforced;
(c) 5 copies of a supporting brief (one signed) which conforms to MCR 7.212(C) to the extent possible;
(d) a notice of preliminary hearing on the complaint on the first Tuesday at least 21 days after the complaint and supporting documents are served on the defendant, the agency (unless the agency is the plaintiff), and any other interested party;
(e) proof that a copy of each of the filed documents was served on the defendant, the agency (unless the agency is the plaintiff), and any other interested party;
(f) the certified tribunal or agency record or evidence the plaintiff has requested that the certified record be sent to the Court of Appeals; and
(g) the entry fee.
(2) Answer. The defendant must file, and any other interested party may file, with the clerk before the date of the preliminary hearing:
(a) 5 copies of an answer to the complaint (one signed);
(b) 5 copies of an opposing brief (one signed) conforming to MCR 7.212(D) to the extent possible; and
(c) proof that a copy of each of the filed documents was served on the plaintiff, the agency, and any other interested party.
(3) Preliminary Hearing. There is no oral argument on preliminary hearing of a complaint. The court may deny relief, grant peremptory relief, or allow the parties to proceed to full hearing on the merits in the same manner as an appeal of right. If the case is ordered to proceed to full hearing, the time for filing of a brief by the plaintiff begins to run from the date the clerk certifies the order allowing the case to proceed. The plaintiff's brief must conform to MCR 7.212(C). An opposing brief must conform to MCR 7.212(D). The case is heard on the certified record transmitted by the tribunal or agency. MCR 7.210(A)(2), regarding the content of the record, applies.
(Current as of 06/30/2006)
Rule 7.207 Cross Appeals
(A) Right of Cross Appeal.
(1) When an appeal of right is filed or the court grants leave to appeal any appellee may file a cross appeal.
(2) If there is more than 1 party plaintiff or defendant in a civil action and 1 party appeals, any other party, whether on the same or opposite side as the party first appealing, may file a cross appeal against all or any of the other parties to the case as well as against the party who first appealed. If the cross appeal operates against a party not affected by the first appeal or in a manner different from the first appeal, that party may file a further cross appeal as if the cross appeal affecting that party had been the first appeal.
(B) Manner of Filing. To file a cross appeal, the cross appellant shall file with the clerk a claim of cross appeal in the form required by MCR 7.204(D) and the entry fee
(1) within 21 days after the claim of appeal is filed with the Court of Appeals or served on the cross appellant, whichever is later, if the first appeal was of right; or
(2) within 21 days after the clerk certifies the order granting leave to appeal, if the appeal was initiated by application for leave to appeal.
The cross appellant shall file proof that a copy of the claim of cross appeal was served on the cross appellee and any other party in the case. A copy of the judgment or order from which the cross appeal is taken must be filed with the claim.
(C) Additional Requirements. The cross appellant shall perform the steps required by MCR 7.204(E) and (F), except that the cross appellant is not required to order a transcript or file a court reporter's or recorder's certificate unless the initial appeal is abandoned or dismissed. Otherwise the cross appeal proceeds in the same manner as an ordinary appeal.
(D) Abandonment or Dismissal of Appeal. If the appellant abandons the initial appeal or the court dismisses it, the cross appeal may nevertheless be prosecuted to its conclusion. Within 21 days after the clerk certifies the order dismissing the initial appeal, if there is a record to be transcribed, the cross appellant shall file a certificate of the court reporter or recorder that a transcript has been ordered and payment for it made or secured and will be filed as soon as possible or has already been filed.
(E) Delayed Cross Appeal. A party seeking leave to take a delayed cross appeal shall proceed under MCR 7.205.
(Current as of 06/30/2006)
Rule 7.208 Authority of Court or Tribunal Appealed From
(A) Limitations. After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except
(1) by order of the Court of Appeals,
(2) by stipulation of the parties,
(3) after a decision on the merits in an action in which a preliminary injuction was granted, or
(4) as otherwise provided by law.
In a criminal case, the filing of the claim of appeal does not preclude the trial court from granting a timely motion under subrule (B).
(B) Postjudgment Motions in Criminal Cases.
(1) No later than 56 days after the commencement of the time for filing the defendant-appellant's brief as provided by MCR 7.212(A)(1)(a)(iii), the defendant may file in the trial court a motion for a new trial, for judgment of acquittal, to withdraw a plea, or for resentencing.
(2) A copy of the motion must be filed with the Court of Appeals and served on the prosecuting attorney.
(3) The trial court shall hear and decide the motion within 28 days of filing, unless the court determines that an adjournment is necessary to secure evidence needed for the decision on the motion or that there is other good cause for an adjournment.
(4) Within 28 days of the trial court's decision, the court reporter or recorder must file with the trial court clerk the transcript of any hearing held.
(5) If the motion is granted in whole or in part,
(a) the defendant must file the appellant's brief or a notice of withdrawal of the appeal within 42 days after the trial court's decision or after the filing of the transcript of any hearing held, whichever is later;
(b) the prosecuting attorney may file a cross appeal in the manner provided by MCR 7.207 within 21 days after the trial court's decision. If the defendant has withdrawn the appeal before the prosecuting attorney has filed a cross appeal, the prosecuting attorney may file a claim of appeal or an application for leave to appeal within the 21-day period.
(6) If the motion is denied, defendant-appellant's brief must be filed within 42 days after the decision by the trial court, or the filing of the transcript of any trial court hearing, whichever is later.
(C) Correction of Defects. Except as otherwise provided by rule and until the record is filed in the Court of Appeals, the trial court or tribunal has jurisdiction
(1) to grant further time to do, properly perform, or correct any act in the trial court or tribunal in connection with the appeal that was omitted or insufficiently done, other than to extend the time for filing a claim of appeal or for paying the entry fee or to allow delayed appeal;
(2) to correct any part of the record to be transmitted to the Court of Appeals, but only after notice to the parties and an opportunity for a hearing on the proposed correction.
After the record is filed in the Court of Appeals, the trial court may correct the record only with leave of the Court of Appeals.
(D) Supervision of Property. When an appeal is filed while property is being held for conservation or management under the order or judgment of the trial court, that court retains jurisdiction over the property pending the outcome of the appeal, except as the Court of Appeals otherwise orders.
(E) Temporary Orders. A trial court order entered before final judgment concerning custody, control, and management of property; temporary alimony, support or custody of a minor child, or expenses in a domestic relations action; or a preliminary injunction, remains in effect and is enforceable in the trial court, pending interlocutory appeal, except as the trial court or the Court of Appeals may otherwise order.
(F) Stays and Bonds. The trial court retains authority over stay and bond matters, except as the Court of Appeals otherwise orders.
(G) Matters Pertaining to Appointment of Attorney. Throughout the pendency of an appeal involving an indigent person, the trial court retains authority to appoint, remove, or replace an attorney except as the Court of Appeals otherwise orders.
(H) Acts by Other Judges. Whenever the trial judge who has heard a case dies, resigns, or vacates office, or is unable to perform any act necessary to an appeal of a case within the time prescribed by law or these rules, another judge of the same court, or if another judge of that court is unavailable, another judge assigned by the state court administrator, may perform the acts necessary to the review process. Whenever a case is heard by a judge assigned from another court, the judicial acts necessary in the preparation of a record for appeal may be performed, with consent of the parties, by a judge of the court in which the case was heard.
(I) Attorney Fees and Costs. The trial court may rule on requests for costs or attorney fees under MCR 2.403, 2.405, 2.625 or other law or court rule, unless the Court of Appeals orders otherwise.
(Current as of 06/30/2006)
Rule 7.209 Bond; Stay of Proceedings
(A) Effect of Appeal; Prerequisites.
(1) An appeal does not stay the effect or enforceability of a judgment or order of a trial court unless the trial court or the Court of Appeals otherwise orders.
(2) A motion for bond or for a stay pending appeal may not be filed in the Court of Appeals unless such a motion was decided by the trial court.
(3) A motion for bond or a stay pending appeal filed in the Court of Appeals must include a copy of the trial court's opinion and order, and a copy of the transcript of the hearing on the motion in the trial court.
(B) Responsibility for Setting Amount of Bond in Trial Court.
(1) Civil Actions. Unless determined by law, the dollar amount of a stay or appeal bond in a civil action must be set by the trial court in an amount adequate to protect the opposite party.
(2) Criminal Cases. In a criminal case the granting of bond pending appeal and the amount of it are within the discretion of the trial court, subject to applicable law and rules. Bond must be sufficient to guarantee the appearance of the defendant. Unless bond pending appeal is allowed and a bond is filed with the trial court, a criminal judgment may be executed immediately, even though the time for taking an appeal has not elapsed.
(C) Amendment of Bond. On motion, the trial court may order an additional or different bond, set the amount, and approve or require different sureties.
(D) Review by Court of Appeals. Except as otherwise provided by rule or law, on motion filed in a case pending before it, the Court of Appeals may amend the amount of bond set by the trial court, order an additional or different bond and set the amount, or require different or additional sureties. The Court of Appeals may also refer a bond or bail matter to the court from which the appeal is taken. The Court of Appeals may grant a stay of proceedings in the trial court or stay of effect or enforcement of any judgment or order of a trial court on the terms it deems just.
(E) Stay of Proceedings by Trial Court.
(1) Except as otherwise provided by law or rule, the trial court may order a stay of proceedings, with or without a bond as justice requires.
(a) When the stay is sought before an appeal is filed and a bond is required, the party seeking the stay shall file a bond, with the party in whose favor the judgment or order was entered as the obligee, by which the party promises to
(i) perform and satisfy the judgment or order stayed if it is not set aside or reversed; and
(ii) prosecute to completion any appeal subsequently taken from the judgment or order stayed and perform and satisfy the judgment or order entered by the Court of Appeals or Supreme Court.
(b) If a stay is sought after an appeal is filed, any bond must meet the requirements set forth in subrule 7.209(F).
(2) If a stay bond filed under this subrule substantially meets the requirements of subrule (F), it will be a sufficient bond to stay proceedings pending disposition of an appeal subsequently filed.
(3) The stay order must conform to any condition expressly required by the statute authorizing review.
(4) If a government party files a claim of appeal from an order described in MCR 7.202(6)(a)(v), the trial court shall stay proceedings regarding that party during the pendency of the appeal, unless the court of Appeals directs otherwise.
(F) Conditions of Appeal Bond.
(1) Civil Actions. In a bond filed for stay pending appeal in a civil action, the appellant shall promise in writing:
(a) to prosecute the appeal to decision;
(b) to perform or satisfy a judgment or order of the Court of Appeals or the Supreme Court;
(c) to perform or satisfy the judgment or order appealed from, if the appeal is dismissed;
(d) in an action involving the possession of land or judgment for foreclosure of a mortgage or land contract, to pay the appellee the damages which may result from the stay of proceedings; and
(e) to do any other act which is expressly required in the statute authorizing appeal.
(2) Criminal Cases. A criminal defendant for whom bond pending appeal is allowed after conviction shall promise in writing:
(a) to prosecute the appeal to decision;
(b) if the sentence is one of incarceration, to surrender himself or herself to the sheriff of the county in which he or she was convicted or other custodial authority if the sentence is affirmed on appeal or if the appeal is dismissed;
(c) if the judgment or order appealed is other than a sentence of incarceration, to perform and comply with the order of the trial court if it is affirmed on appeal or if the appeal is dismissed;
(d) to appear in the trial court if the case is remanded for retrial or further proceedings or if a conviction is reversed and retrial is allowed;
(e) to remain in Michigan unless the court gives written approval to leave; and
(f) to notify the trial court clerk of a change of address.
(G) Sureties and Filing of Bond. Except as otherwise specifically provided in this rule, MCR 3.604 applies. A bond must be filed with the clerk of the court which entered the order or judgment to be stayed.
(1) Civil Actions. A bond in a civil action need not be approved by a court or clerk before filing but is subject to the objection procedure provided in MCR 3.604.
(2) Criminal Cases. A criminal defendant filing a bond after conviction shall give notice to the county prosecuting attorney of the time and place the bond will be filed. The bond is subject to the objection procedure provided in MCR 3.604.
(H) Stay of Execution.
(1) If a bond is filed before execution issues, and notice is given to the officer having authority to issue execution, execution is stayed. If the bond is filed after the issuance but before execution, and notice is given to the officer holding it, execution is suspended.
(2) The Court of Appeals may stay or terminate a stay of any order or judgment of a lower court or tribunal on just terms.
(3) When the amount of the judgment is more than $1000 over the insurance policy coverage or surety obligation, then the policy or obligation does not qualify to stay execution under MCL 500.3036 on the portion of the judgment in excess of the policy or bond limits. Stay pending appeal may be achieved by complying with that statute and by filing a bond in an additional amount adequate to protect the opposite party or by obtaining a trial court or Court of Appeals order waiving the additional bond.
(4) A statute exempting a municipality or other governmental agency from filing a bond to stay execution supersedes the requirements of this rule.
(I) Ex Parte Stay. Whenever an ex parte stay of proceedings is necessary to allow a motion in either the trial court or the Court of Appeals, the court before which the motion will be heard may grant an ex parte stay for that purpose. Service of a copy of the order, with a copy of the motion, any affidavits on which the motion is based, and notice of hearing on the motion, shall operate as a stay of proceedings until the court rules on the motion unless the court supersedes or sets aside the order in the interim. Proceedings may not be stayed for longer than necessary to enable the party to make the motion according to the practice of the court, and if made, until the decision of the court.
(Current as of 06/30/2006)
Rule 7.210 Record on Appeal
(A) Content of Record. Appeals to the Court of Appeals are heard on the original record.
(1) Appeal From Court. In an appeal from a lower court, the record consists of the original papers filed in that court or a certified copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced. In an appeal from probate court in an estate or trust proceeding, only the order appealed from and those petitions, opinions, and other documents pertaining to it need be included.
(2) Appeal From Tribunal or Agency. In an appeal from an administrative tribunal or agency, the record includes all documents, files, pleadings, testimony, and opinions and orders of the tribunal, agency, or officer (or a certified copy), except those summarized or omitted in whole or in part by stipulation of the parties. Testimony not transcribed when the certified record is sent for consideration of an application for leave to appeal, and not omitted by stipulation of the parties, must be filed and sent to the court as promptly as possible.
(3) Excluded Evidence. The substance or transcript of excluded evidence offered at a trial and the proceedings at the trial in relation to it must be included as part of the record on appeal.
(4) Stipulations. The parties in any appeal to the Court of Appeals may stipulate in writing regarding any matters relevant to the lower court or tribunal or agency record if the stipulation is made a part of the record on appeal and sent to the Court of Appeals.
(B) Transcript.
(1) Appellant's Duties; Orders; Stipulations.
(a) The appellant is responsible for securing the filing of the transcript as provided in this rule. Except in cases governed by MCR 6.425(F)(2), or as otherwise provided by Court of Appeals order or the remainder of this subrule, the appellant shall order from the court reporter or recorder the full transcript of testimony and other proceedings in the trial court or tribunal. Once an appeal is filed in the Court of Appeals, a party must serve a copy of any request for transcript preparation on opposing counsel and file a copy with the Court of Appeals.
(b) In an appeal from probate court in an estate or trust proceeding, only that portion of the transcript concerning the order appealed from need be filed. The appellee may file additional portions of the transcript.
(c) On the appellant's motion, with notice to the appellee, the trial court or tribunal may order that some portion less than the full transcript (or no transcript at all) be included in the record on appeal. The motion must be filed within the time required for filing an appeal, and, if the motion is granted, the appellee may file any portions of the transcript omitted by the appellant. The filing of the motion extends the time for filing the court reporter's or recorder's certificate until 7 days after entry of the trial court's or tribunal's order on the motion.
(d) The parties may stipulate that some portion less than the full transcript (or none) be filed.
(e) The parties may agree on a statement of facts without procuring the transcript and the statement signed by the parties may be filed with the trial court or tribunal clerk and sent as the record of testimony in the action.
(2) Transcript Unavailable. When a transcript of the proceedings in the trial court or tribunal cannot be obtained from the court reporter or recorder, the appellant shall file a settled statement of facts to serve as a substitute for the transcript.
(a) Within 14 days after filing the claim of appeal, the appellant shall file with the trial court or tribunal clerk, and serve on each appellee, a proposed statement of facts. The proposed statement of facts must concisely set forth the substance of the testimony, or the oral proceedings before the trial court or tribunal if no testimony was taken, in sufficient detail to inform the Court of Appeals of the nature of the controversy and of the proceedings in the trial court or tribunal.
(b) The appellant shall notice the proposed statement of facts for prompt settlement before the trial court or tribunal. An amendment or objection to the proposed statement of facts must be in writing, filed in the trial court or tribunal before the time set for settlement, and served on the appellant and any other appellee.
(c) The trial court or tribunal shall settle any controversy and certify a statement of facts as an accurate, fair, and complete statement of the proceedings before it.
(d) The statement of facts and the certifying order must be filed with the trial court or tribunal clerk and a copy of the certifying order must be filed with the Court of Appeals.
(3) Duties of Court Reporter or Recorder.
(a) Certificate. Within 7 days after a transcript is ordered by a party or the court, the court reporter or recorder shall furnish a certificate stating:
(i) that the transcript has been ordered, that payment for the transcript has been made or secured, that it will be filed as soon as possible or has already been filed, and the estimated number of pages for each of the proceedings requested;
(ii) as to each proceeding requested, whether the court reporter or recorder filing the certificate recorded the proceeding; and if not,
(iii) the name and certification number of the court reporter or recorder responsible for the transcript of that proceeding.
(b) Time for Filing. The court reporter or recorder shall give precedence to transcripts necessary for interlocutory criminal appeals and custody cases. The court reporter or recorder shall file the transcript with the trial court or tribunal clerk within
(i) 14 days after it is ordered for an application for leave to appeal from an order granting or denying a motion to suppress evidence in a criminal case;
(ii) 28 days after it is ordered in an appeal of a criminal conviction based on a plea of guilty, guilty but mentally ill, or nolo contendere;
(iii) 42 days after it is ordered in any other interlocutory criminal appeal or custody case;
(iv) 91 days after it is ordered in other cases.
(c) Copies. Additional copies of the transcripts required by the appellant may be ordered from the court reporter or recorder or photocopies may be made of the transcript furnished by the court reporter or recorder.
(d) Form of Transcript. The transcript must be filed in one or more volumes under a hard-surfaced or other suitable cover, stating the title of the action, and prefaced by a table of contents showing the subject matter of the transcript with page references to the significant parts of the trial or proceedings, including the testimony of each witness by name, the arguments of the attorneys, and