1.5Remand¹

A.Authority to Remand

Remanding for additional evidence. “The Court of Appeals may, at any time, in addition to its general powers, in its discretion and on the terms it deems just . . . remand the case to allow additional evidence to be taken[.]” MCR 7.216(A)(5).

Motion to remand. “The appellant may move to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal and show: (i) that the issue is one that is of record and that must be initially decided by the trial court; or (ii) that development of a factual record is required for appellate consideration of the issue. A motion under this subrule must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.” MCR 7.211(C)(1)(a).

B.Process Upon Remand

1.Jurisdiction

If a motion to remand is filed, all further proceedings are stayed in the Court of Appeals “until the motion is denied or the trial court proceedings are completed, unless the Court of Appeals orders otherwise.” MCR 7.211(C)(1)(d).

2.Scope of Remand Order and Rule of Mandate

“On remand, the trial court may consider and decide any matters left open by the appellate court, and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision.” People v Kennedy, 384 Mich 339, 343 (1971).

“When an appellate court remands a case with specific instructions, it is improper for a lower court to exceed the scope of the order.” People v Russell, 297 Mich App 707, 714 (2012). The rule of mandate “embodies the well-accepted principle . . . that a lower court must strictly comply with, and may not exceed the scope of, a remand order.” Int’l Business Machines Corp v Dep’t of Treasury, 316 Mich App 346, 352-353 (2016). “The rule provides that any [lower] court that has received the mandate of an appellate court cannot vary or examine that mandate for any purpose other than executing it,” and although the lower court may “decide anything not foreclosed by the mandate, . . . [it] commits “jurisdictional error” if it takes actions that contradict the mandate.” Id. (quotation marks and citations omitted) (noting that “‘[t]he rule of mandate is similar to, but broader than, the law of the case doctrine,’” “which is a discretionary doctrine that expresses the general practice of the courts and is not a limit on the power of the courts”²). Accordingly, where the Michigan Supreme Court reversed the decisions of the lower courts in favor of the defendant and remanded to the Court of Claims for entry of an order granting summary disposition in favor of the plaintiff, the Court of Claims lacked authority, on remand, to grant judgment in favor of the defendant on the basis of an intervening change in the law. Id. at 349-353 (noting that “[t]he Court of Claims was simply to perform the nondiscretionary, ministerial task of entering judgment in favor of [the plaintiff],” and concluding that it “erred by taking an action that contradicted the mandate, effectively exceeding the remand’s jurisdictional scope”).

See Section 1.2(C) for information on expanding the record on remand.