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No. 133294
| Rick Beavers, |
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Mark R. Bendure |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Wayne - MacDonald, K.) |
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| Barton Malow Company, Jomar Building Company, |
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Janet Callahan Barnes |
| Inc., Spillis Cardella, Dmjm, a/k/a Dmja, Inc., |
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| and Robert Smith, |
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| Defendants-Appellees. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Application for Leave to Appeal>>
Plaintiff-Appellant's Supplemental Brief>>
Defendants-Appellees' Brief in Opposition of Application for Leave to Appeal>>
Defendants-Appellees' Supplemental Brief>>
Defendants-Appellees' Reply Brief>>
State Bar of Michigan Appellate Practice Section's Amicus Curiae Brief>>
Background
Rick Beavers sought to appeal a trial court’s January 7, 2005 order dismissing his lawsuit. He filed a timely claim of appeal on January 26, 2005, which was dismissed by the Court of Appeals on April 13, 2005, due to Beavers’ failure to file a timely brief on appeal. Beavers then filed a motion to reinstate his appeal, which was denied on April 28, 2005. On March 13, 2006, Beavers filed an application for leave to file a delayed appeal pursuant to Michigan Court Rule 7.205(F)(3)(a), which states that such an application shall not be granted if it is filed “more than 12 months after . . . entry of a final judgment or other order that could have been the subject of an appeal of right . . . .” On July 11, 2005, the Court of Appeals granted Beavers’ delayed application, directing the parties to brief whether the limitation period set forth in MCR 7.205(F)(3) should be tolled in this case. Beavers argued that the filing period was tolled while his first appeal was pending, citing in support of his argument Riza v Niagara Machine & Tool Works, Inc, 411 Mich 915 (1980), and People v Kincade (On Remand), 206 Mich App 477, 483 (1994). On January 18, 2007, the Court of Appeals issued an unpublished per curiam opinion dismissing Beavers’ appeal. The Court of Appeals reasoned that it did not have jurisdiction to consider the appeal under MCR 7.205(F)(3), because the twelve-month period that rule allows for filing a delayed application was not tolled while Beavers’ first appeal was pending. Beavers appeals.
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