How Do I Appeal A Court Order in Michigan?

March 23, 2020 - Categories: Legal Articles, Michigan

HOW DO I APPEAL A COURT ORDER IN MICHIGAN?

Note: this article is regarding appeals from court orders entered in Michigan-jurisdiction courts (not federal courts).

Have you recently been to court in Michigan for your court case and the judge issued a final order that you feel is in violation of the law, a misinterpretation of the law, not in the best interests of your children (in custody cases, for example), or was a clear abuse of the judge’s discretion? If you disagree with a judge’s final order reached after a final hearing or trial, you do have some options in Michigan, but you must act quickly.

CONSIDER FIRST FILING A MOTION FOR REHEARING OR MOTION TO RECONSIDER

Your first option is to file a Motion for Rehearing, or a Motion to Reconsider. This is a document that you are writing which spells out clearly how the judge made a “clear error” as to his or her interpretation of the law in your case. You can identify and explain the state statutes and case law (prior court decisions in the Michigan Court of Appeals or Michigan Supreme Court) that are relevant to your case, and how the judge made a clear error as to applying these laws to your case.

You can also re-attach documents that were admitted into evidence during the court hearing(s) which lead to this final order, but you cannot attach new documents unless you tried to admit them in court and were denied in court. You also cannot bring in new facts or testimony that was not brought up in the court hearing(s).

However, you can also point out from the transcripts of the hearing how the judge – in his or her written decision and order -- mis-stated the facts, missed facts, or misinterpreted facts. You end the motion with a request for what you want the judge to do, such as reversing his or her prior order and entering a different order, or allowing the case to proceed to a new trial, etc.

When must a Motion for Rehearing or a Motion to Reconsider be filed? A motion to reconsider must be filed within 21 days of the written order that the judge issued. Therefore, if the judge issued an “oral” order on one day, but then did not put that order into writing and sign it until a couple weeks later, your 21-day period starts from when the written order was actually filed with the court (also known as “entered with the court.”).

You must file the motion with the clerk of court, a copy to the judge, and send a copy to the opposing party, and file a proof of mailing with the court. On a motion for rehearing, you are asking for a new hearing. On a motion for reconsideration (also called a “Motion to Reconsider”), you do not get a new hearing, and the opposing party cannot file a response.

Please note that, generally, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

Lastly, if you choose not to file a Motion for Rehearing or Motion to Reconsider, then your other remaining option is to file an appeal to a higher court.

HOW DO I FILE AN APPEAL TO A HIGHER COURT?

An “appeal” is a request to have a higher court change or reverse a judgment of a lower court. When you appeal, the entire case is reviewed by a higher court. An appeal doesn't allow you to re-do your trial in front of a higher court. No new evidence is presented and no witnesses are called. Instead, an appeal asks a higher court to review the transcripts of your hearing, the evidence (documents, exhibits) that was admitted at your hearing(s), the judge’s decision and order, any applicable law (state statutes and/or case law) that you want the appeals court to consider, and your argument as to how the lower court either made a clear error or how the judge abused their discretion under the law.

Who files an appeal? The person who files the appeal is the “appellant.” The person who is on the opposite side of the case is the “appellee.”

Types of appeals / actions: There are three (3) ways to initiate an action in the Court of Appeals:

 1. A claim of appeal (also known as an “appeal by right”) is filed when an appellant has an appeal as a matter of right provided by the Michigan Constitution, a statute or court rule. If you file all the required documents correctly within the time allotted, the Court of Appeals must review the substance of your arguments and issue a decision on the merits. MCR 7.203(A); MCR 7.204

2. An application for leave to appeal is a request for the Court of Appeals to accept an appeal which you do not have an automatic right to file. The Court of Appeals will decide whether it will grant full review based on the content of the correctly filed application. If the Court grants the application, then it will review the substance of your arguments and issue a decision on the merits, provided that you file any additional required documents correctly within the allotted time. MCR 7.203(B); MCR 7.205

3. An action for an extraordinary writ or an original action is generally an action in which you are requesting the Court of Appeals to exercise its supervisory authority over a lower court or tribunal, or to exercise its power to force a public official to fulfill his/her duty. MCR 7.203(C); MCR 7.206

WHICH TYPE OF APPEAL DO I FILE FOR MY ORDER?

Claim of Appeal: Most “final” orders can be appealed by right under a claim of appeal as long as you file all necessary documents within 21 days of the final written order of the judge. A final order is a “final judgment or order disposing of the whole controversy.” There are some final orders that can never be filed under claim of appeal, even if you file within 21 days. One such final order is an order setting or modifying child support in a domestic-relations / family court action.

Application for Leave to Appeal: You may file an application for leave to appeal from the following orders:

  1. A final order that you ordinarily could have appealed by claim of right, but the claim of appeal was not timely filed. MCR 7.203(B)(5) In this case you must file a delayed application for leave to appeal. MCR 7.205(G)(1) However, you cannot file an application from a conviction and sentence that you previously appealed. MCR 7.205(G)(2)
  2. An order entered in the lower court that is not a final judgment or order disposing of the whole controversy. MCR 7.203(B)(1)
  3. A circuit court final judgment or order from an appeal from a district or probate court, or an administrative tribunal. MCR 7.203(B)(2). This means, for example, if you appealed a district court final order to the circuit court (under appeal by right), and then get an unfavorable decision at the circuit court level, you cannot file a claim of appeal by right to the Michigan Court of Appeals, but must file an Application for Leave to Appeal.
  4. A final order of the Worker’s Compensation Appellate Commission. MCR 7.203(B)(3) & MCL 418.861a
  5. A judgment of sentence entered after a plea of guilty or nolo contendere (no contest) in the circuit court. MCR 7.203(B)(4) & Const 1963, Art 1 Sec 20
  6. Certain probate court orders. MCR 5.801(B)

WHAT IS THE DEADLINE FOR MY APPEAL?

Deadline for a claim of appeal: A claim of appeal must be filed:

  1. For most cases, within 21 days after entry of the judgment or order you are appealing, MCR 7.204(A)(1)(a) or within 21 days after entry of an order denying a timely filed motion for new trial, reconsideration, or other postjudgment relief, MCR 7.204(A)(1)(c) or
  2. In a termination of parental rights case under the Juvenile Code, within 14 days of entry of an order:
    1. terminating your parental rights,
    2. denying your timely filed motion for postjudgment relief, or
    3. denying your timely filed request for appointment of counsel. MCR 7.204(A)(1) or
  3. In other cases, there is a different deadline provided by a statute governing your specific type of case. MCR 7.204(A)(1)(d). For example, an appellant must file a claim of appeal within 10 days after entry of the judgment in summary proceedings to recover possession of premises. MCR 4.201(N)(2). See also MCR 4.202(L) regarding land contract forfeiture cases.

Deadline for an application for leave to appeal:

An application for leave to appeal must also be filed within 21 days. However, if you miss the deadline of 21 days, then you can file a “Delayed Application for Leave to Appeal” within 6 months of the date the final order was entered. However, with a Delayed Application for Leave to Appeal, you must also explain in your Brief in Support of Appeal (discussed later) what is your “good cause” for not filing your Application for Leave to Appeal timely within 21 days.

Effect of a Motion to Reconsider or for Rehearing on your Appeal filing deadlines:

As you will notice by #1 above, if you filed a motion for rehearing or motion to reconsider within 21 days of the final written order being entered, then the time in which you must file an Appeal is tolled (delayed) until after a final order denying your motion for rehearing or denying your motion for reconsideration. Thus, for example, if you don’t like a final order modifying custody in a family court case, you can file a Motion to Reconsider within 21 days of the written order being entered. Then, if the judge takes a few weeks to deny that order, and issues his or her denial in writing, then you have 21 days from the date of denial of your motion to reconsider to file your appeal. Thus, filing a motion for rehearing or to reconsider is a good strategy to: 1) buy you more time before filing the appeal; 2) giving you a cheaper alternative to appeal to try to get a different decision; and 3) giving you more time to come up with the money to file your appeal (which is more expensive than an motion).

WHAT HAPPENS IF I DO NOT FILE AN APPEAL ON TIME (CONSEQUENCES OF LATE FILING)?

The time within which an appeal of right may be claimed—generally but not always 21 days—is jurisdictional. Failing to have the claim of appeal in the hands of the clerk of the appellate court within the time allowed is a serious mistake. If the appeal of right is lost in this way, parties often are allowed to file a late application for leave to appeal, which is a regular application for leave plus an explanation of the delay. But the appeal of right has become a discretionary request, and a full brief must be filed at the outset of the appeal.

Because it is so important to appeal timely from a final order, it is important to know what a “final order” is. In a case with multiple claims or multiple parties, the final order generally is the first order that resolves all the claims as to all the parties. This simple statement, however, masks various complexities that will be touched on later. Some orders, not inherently final, are nonetheless defined in the court of appeals as final for policy reasons (e.g., orders denying governmental immunity) or because of the special needs of the parties (e.g., postjudgment child custody orders). Certain postjudgment motions, if timely filed, “toll” the time for appeal by restarting the period within which the claim of appeal may be filed from the decision of the motion. Most of the time, an appeal from a final order entitles the appellant to raise issues concerning any earlier interlocutory (nonfinal) orders entered in the case.

Rarely, leave to appeal a non-final (interlocutory) order must be sought before trial to avoid mootness (“too late to make a difference”). Examples are an order changing venue and a circuit court’s denial of a motion to quash a district court’s decision to bind over a defendant in a criminal case. These orders become unreviewable once the case is tried.

The circuit court’s appellate jurisdiction depends on the you timely filing your claim of appeal or application for leave to appeal and paying the filing fee. MCR 7.103, .104(A). If the claim of appeal or filing fee is filed even one day late, the appeal as of right is lost. In appeals from trial court, the circuit court may still have discretion to hear the appeal, but only if a delayed application for leave to appeal is filed within the time allowed. MCR 7.103(B)(1)(b). In appeals from an agency, the court lacks jurisdiction to grant an application for late appeal if no statute authorizes it. See MCR 7.103(B)(4). In any event, it is far better to file a timely appeal as a matter of right than to give a busy circuit court discretion to deny an application.

WHAT DOCUMENTS MUST I FILE WITH MY APPEAL?

There are many documents that you must file with your appeal.

In a claim of appeal by right, you must – within the filing deadline -- file a couple court forms (Claim of Appeal, etc), plus proof of having ordered transcripts (or the transcripts themselves if you have them), the Final order and any temporary order(s) being appealed, and a copy of the Register of Actions for your case. You must also send these docs (serve the docs) to the opposing party. Later, once the transcripts arrive, you must file and serve a copy of those. Lastly, within another deadline, you must file a complete “Brief in Support of Appeal” which must include many different sections, all the applicable laws you want the court to consider, facts, argument, and other information.

In an application for leave to appeal, you must file all of the above, but you must also file your “Brief in Support of Application for Leave to Appeal” within the filing deadline. Because this document will require so much information, law, argument, etc., it is quite a challenge to prepare this and file it within the filing deadline, especially if you have not yet received the transcripts. The court will not delay the deadline for failure to have the transcripts. So you may be writing this document without the ability to refer to the transcripts. However, if you really need the transcripts to help you prepare the best Brief, you may want to wait until you get the transcripts, write your Brief, and then file a Delayed Application for Leave to Appeal, and use the issue of getting transcripts as part of your “good cause” rationale for the delay.

In addition to the above, then you must also pay the filing fee ($375.00 as of the time of this writing), serve the trial court or the agency with a copy of the claim of appeal. MCR 7.104(E)(1), and serve the trial court or agency with any fee or bond required by law, and perform any other acts required by law, such as delivering to or depositing in court money, property, or documents. MCR 7.104(D)(5)

While failure to timely file a claim of appeal and pay the fee is fatal to the appeal of right, failure to timely complete any of the other tasks above is not. Before dismissing the appeal, the circuit court must first send a defect letter, notifying the parties that the appeal will be dismissed if the deficiency is not remedied within 14 days. MCR 7.113. If the deficiency is cured within 14 days of the date of service, the circuit court cannot dismiss the appeal. Id. That said, an appellant who repeatedly disregards the rules is subject to sanctions, including dismissal of the appeal. MCR 7.112.

WHERE DO I FILE MY APPEAL (TO WHICH COURT)?

If you had a case in the district court and want to appeal the case, it must be filed with the circuit court in the county where the district court case was decided. There is one exception: if your case was heard before a magistrate, you may appeal the magistrate's decision in the district court where the magistrate serves by filing a written claim of appeal within 7 days of the entry of the magistrate's decision. Appellate rules applicable to circuit court are Michigan Court Rules 7.101 through 7.123.

If you had a case in the circuit court and want to appeal the case, it would typically be a matter for the Court of Appeals. Appellate rules applicable to the Court of Appeals are Michigan Court Rules 7.201 through 7.219. Generally, decisions from final orders of a circuit court or probate court, as well as some agency orders, may be appealed to the court as a matter of right. Other lower court or tribunal decisions may be appealed only by application for leave to appeal, i.e., with permission of the court. The court also has jurisdiction to hear some original actions, such as complaints for mandamus or superintending control against government officers or actions alleging that state law has imposed an unfunded or inadequately funded mandate on local units of government.

Like most appellate courts, the Court of Appeals observes the principle of stare decisis so that the holding in an earlier decision serves as binding precedent in a later appeal. When a panel expresses its disagreement with a prior opinion, the court rules provide a mechanism by which a special seven-judge “conflict panel” may be convened to resolve the conflict between the earlier opinion and the later decision. MCR 7.215(J).

Decisions of the Court of Appeals may generally be appealed by leave application to the Michigan Supreme Court.

WHAT KIND OF DECISIONS WILL AN APPEALS COURT MAKE?

The appeals court can take one of several actions. They may deny the appeal outright, they may grant it in party and deny it in part, and they may grant in full. If they grant any part of your appeal, then the court may send (remand) your case back to the lower court for a retrial, or a re-decision based on their findings. Alternatively, the appeals court may issue a new decision altogether, including ordering that the lower court order is reversed completely (undone). If reversed, then any prior final orders in existence are automatically reinstated. If no prior order existed, then the lower-court must make a new order which is consistent with the appeals’ court decision and order.

HOW CAN I GET LEGAL HELP WITH MY MOTION FOR REHEARING, TO RECONSIDER, APPEAL BY RIGHT, OR APPLICATION FOR LEAVE TO APPEAL?

Access Legal Care provides a free legal consultation and affordable legal help for people who want to file a motion for a rehearing or for reconsideration, and/or to file an appeal or an application for leave to appeal.  We can help you on a limited-scope basis with just preparing and filing paperwork, ordering transcripts, and writing an Appellate Brief. Or, when oral argument in court is allowed and recommended, we can also appear in court on your behalf and argue your motion or appeal.

If you would like us to help you with your motion for rehearing or reconsideration, your appeal, or your application for leave to appeal, please schedule a free phone appointment with an attorney at https://www.accesslegalcare.com/schedule-a-phone-appointment/

We hope to be able to help you!