Chapter 2: Circuit Court Appeals
Part A: General Procedural Rules & Information
Part A: General Procedural Rules & Information
The rules in MCR 7.101 et seq. govern the procedure for appealing to the circuit court. MCR 7.101(A). The rules set out in subchapter 7.100 of the Michigan Court Rules “do not restrict or enlarge the appellate jurisdiction of the circuit court.” MCR 7.101(B).
A circuit court judge may not “review[] on appeal, as a circuit judge, decisions that he rendered while acting as a district court judge.” People v Ward, 501 Mich 949, 949 (2018).
“[A]n individual (or his professional corporation) directly, personally, and financially affected and bound by [a] district court’s order . . . has ‘standing’ to challenge that order in a higher court. Matthew R Abel, PC v Grossman Investments Co, 302 Mich App 232, 237 (2013). “[I]t is appropriate to evaluate [the appellant’s] ability to bring an appeal under [an] ‘aggrieved party’[1] rubric, as it generally applies to any appeal.” Id. at 239 (holding that, under former MCR 7.101(A),2 a nonparty attorney retained by a court-appointed receiver was aggrieved by the district court’s postjudgment order awarding the attorney less remuneration than he sought, and that he therefore had standing to appeal the fee award despite his failure to move for intervention in the underlying action), citing Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286 (2006).
In addition to satisfying the aggrieved party requirements, “an appellant must also demonstrate that the underlying controversy is justiciable.” Matthew R Abel, PC, 302 Mich App at 240.
B.Exhaustion of Administrative Remedies
“[W]hen an administrative scheme of relief exists an individual must exhaust those remedies before a circuit court has jurisdiction.[3] The doctrine of exhaustion of administrative remedies requires that where an administrative agency provides a remedy, a party must seek such relief before petitioning the court.
“The failure to object to a proposal for decision waives any objections not raised.” Meier v Pub Sch Employees’ Retirement Sys, ___ Mich App ___, ___ (2022) (quotation marks and citation omitted). “The waiver extinguishes any error and precludes appellate review.” Id. at ___. “It is not sufficient to generally raise issues concerning an [administrative law judge’s] decision. A plaintiff must specifically identify alleged errors so that the agency has an opportunity to correct them.” Id. at ___.
However, the doctrine of exhaustion of administrative remedies does not apply “where the administrative appellate body cannot provide the relief sought[.]” Connell v Lima Twp, 336 Mich App 263, 282 (2021) (quotation marks and citations omitted). “Furthermore, when local law makes no provision for an administrative appeal, a party is not barred from filing a lawsuit in circuit court because of failure to exhaust his administrative remedies.” Id. In Connell, it was determined that the rezoning decision at issue involved a legislative act rather than an administrative or quasi-judicial act. Id. at 266. Thus, “plaintiffs were not required to exhaust administrative remedies . . . and the circuit court erred by granting summary disposition to defendants on [this] ground[].” Id.
Circuit court. Jurisdiction vests in the circuit court after a claim of appeal is filed or leave to appeal is granted. MCR 7.107; see also MCL 600.8342(2). However, a “circuit court lacks jurisdiction over an untimely claim of appeal” because the “time limit for filing an appeal in circuit court is jurisdictional[.]” Zelasko v Bloomfield Twp, ___ Mich App ___, ___ (2023) (citing MCR 7.104(A) and Quality Market v Detroit Bd of Zoning Appeals, 331 Mich App 388, 393-394 (2019)).
Trial court or agency. “The trial court or agency may not set aside or amend the judgment, order, or decision appealed except by circuit court order or as otherwise provided by law. In all other respects, the authority of the trial court or agency is governed by MCR 7.208(C) through [MCR 7.208(J)].” MCR 7.107.
For additional information on jurisdiction, see Section 2.1(F) regarding appeals of right and Section 2.1(G) regarding appeals by leave.
Committee Tip:
Typically, judges rely on clerical staff to monitor appeal deadlines. It is suggested courts provide training and/or develop a written manual setting forth timing requirements so staff can accurately monitor and appropriately process appeals cases in accordance with applicable court rules.
“Appeals from the district court shall be to the circuit court in the county in which the judgment is rendered.” MCL 600.8342(1).
If the venue of a civil action is improper, the court must change venue if a defendant timely moves, MCR 2.223(A)(1), or the court may change venue on its own initiative, MCR 2.223(A)(2); however, a plaintiff may not file a motion for a change of venue under MCR 2.223(A), Dawley v Hall, 501 Mich 166, 169-170 (2018).
Administrative agencies. Appeals from decisions of agencies governed by the Administrative Procedures Act (APA) “shall be filed in the circuit court for the county where petitioner resides or has his or her principal place of business in this state, or in the circuit court for Ingham county.” MCL 24.303(1). Similarly, an appeal may be filed in the county where the appellant resides or in the circuit court for Ingham county from “any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law[.]” MCL 600.631.4
On a motion of a party, in an appeal from an order or decision of a state board, commission, or agency authorized to promulgate rules or regulations, the court may order a change of venue for the convenience of the parties or attorneys.5 MCR 2.222.
Criminal cases. “An appeal from an interlocutory judgment or order in a felony, misdemeanor, or ordinance violation may be taken, in the manner provided by court rules, by application for leave to appeal to the same court of which a final judgment in that case would be appealable as a matter of right[.]” MCL 770.3(2).
Michigan Employment Security Act. Venue for appeals under the Michigan Employment Security Act is determined under MCL 421.38(1).6 MCR 7.116(D). Under MCL 421.38(1), “[t]he circuit court in the county in which the claimant resides or the circuit court in the county in which the claimant’s place of employment is or was located, or, if a claimant is not a party to the case, the circuit court in the county in which the employer’s principal place of business in this state is located, may review questions of fact and law on the record made before the administrative law judge and the Michigan compensation appellate commission involved in a final order or decision of the Michigan compensation appellate commission[.]”
Michigan Parole Board. “An application for leave to appeal a decision of the parole board may only be filed in the circuit court of the sentencing county under MCL 791.234(11).” MCR 7.118(D)(4).7
Motor Vehicle Code - Secretary of State. Reviews of license denial, suspension, revocation, or restriction are brought before the circuit court in the person’s county of residence, or, if the denial or suspension was made pursuant to an arrest for failing to provide proof of insurance, knowingly providing false proof of insurance, or refusing to submit to a chemical test, in the county where the arrest was made. MCL 257.323(1).8
Concealed pistol licenses. An appeal of “the notice of statutory disqualification, the failure to provide a receipt[9], or the failure to issue [a] license” must be filed in the circuit court where the appellant lives. MCL 28.425d(1).10 “Failure of the county clerk to reinstate a concealed piston license under MCL 28.428(2) or [MCL 28.428(6)] shall be considered a failure to issue a license under MCL 28.425d unless otherwise noted by statute.” MCR 7.121(B).
E.Stay of Proceedings and Bond
A motion for bond or stay pending appeal must be decided by the trial court before it may be filed in the circuit court. MCR 7.108(A)(1). “The motion must include a copy of the trial court’s opinion and order and a copy of the transcript of the hearing, unless its production has been waived.” Id. “Except as otherwise provided by rule or law, the circuit court may amend the amount of bond, order an additional or different bond and set the amount, or require different or additional sureties, . . . remand a bond matter to the trial court, . . . grant a stay of proceedings in the trial court or stay the effect or enforcement of any judgment or order of a trial court on terms the circuit court deems just.” MCR 7.108(A)(2).
1.Civil Proceedings11
“Unless otherwise provided by rule, statute, or court order, an execution [in a civil action] may not issue and proceedings may not be taken to enforce an order or judgment until expiration of the time for taking an appeal of right.” MCR 7.108(B)(1).
Filing an appeal will not stay execution in a civil action unless:
(1) the appellant files a stay bond;
(2) the trial court grants a stay with or without a bond under MCR 3.604(L) (party unable to give bond because of poverty), MCR 7.209(E)(2)(b) (stay ordered by court “as justice requires or as otherwise provided by statute”), or MCL 600.2605 (party unable to give bond because of poverty). MCR 7.108(B)(2).
The bond must:
“(a) 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 of the judgment, including any costs, interest, attorney fees, and sanctions assessed;
(b) contain the promises and conditions that the appellant will:
(i) diligently file and prosecute the appeal to decision taken from the judgment or order stayed, and will perform and satisfy the judgment or order stayed if it is not set aside or reversed;
(ii) perform or satisfy the judgment or order stayed if the appeal is dismissed;
(iii) pay and satisfy any judgment or order entered and any costs assessed against the principal on the bond in the circuit court, Court of Appeals, or Supreme Court; and
(iv) do any other act which is expressly required in the statute authorizing appeal or ordered by the court;
(c) be executed by the appellant along with one or more sufficient sureties as required by MCR 3.604; and
(d) include the conditions provided in [MCR 4.201(O)(4)12] if the appeal is from a judgment for the possession of land.” MCR 7.108(B)(3).
A copy of the bond must be served on all parties as prescribed in MCR 2.10713, and objections must be filed and served within seven days after service of the notice of bond. MCR 7.108(B)(4)(a)-(b). “Objections to the amount of the bond are governed by MCR 2.602(B)(3),” and “[o]bjections to the surety are governed by MCR 3.604(E).” MCR 7.108(B)(4)(b). Hearings under MCR 7.108 may be held by telephone conference as provided in MCR 2.402.14 MCR 7.108(B)(4)(e).
“If no timely objections to the bond, surety, or stay order are filed, the trial court shall promptly enter [an] order staying enforcement of the judgment or order pending all appeals.” MCR 7.108(B)(4)(c). Unless otherwise ordered, the stay continues until jurisdiction is returned to the trial court, or until further order of an appellate court. Id. The stay order must be served on all parties as prescribed in MCR 2.10715, and proof of service must be filed with the trial court. MCR 7.108(B)(4)(d).
“‘[A] bond is required to secure a stay of proceedings to enforce the judgment during the appeal, it is not a condition of the right to appeal’”; therefore, an appellant’s “failure to timely file a bond does not negate his right to appeal” where the circuit court accepts the appellant’s late-posted bond. Matthew R Abel, PC v Grossman Investments Co, 302 Mich App 232, 236 n 1 (2013) (applying former MCR 7.101(C)(2)(b)16 and quoting Wright v Fields, 412 Mich 227, 228 (1981)).
2.Criminal Proceedings
“A criminal judgment may be executed immediately even though the time for taking an appeal has not elapsed. The granting of bond and its amount are within the discretion of the trial court, subject to the applicable laws and rules on bonds pending appeals in criminal cases.” MCR 7.108(C)(1).
If the trial court grants a bond, “the defendant must promise in writing:
(a) to prosecute the appeal to decision;
(b) if the sentence is one of incarceration, to surrender immediately to the county sheriff or as otherwise directed, if the judgment of sentence is affirmed on appeal or if the appeal is dismissed;
(c) if the sentence is other than one of incarceration, to perform and comply with the judgment of sentence 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;
(f) to notify the trial court clerk in writing of a change of address; and
(g) to comply with any other conditions imposed by law or the court.” MCR 7.108(C)(2).
If a bond is to be filed after conviction, the defendant must give notice to the prosecuting attorney of the time and place the bond will be filed. MCR 7.108(C)(3). “The bond is subject to the objection procedure provided in MCR 3.604.” MCR 7.108(C)(3).
F.Appeal of Right17
In civil cases, timely appeals to the circuit court from final judgments and orders are by right unless a statute authorizes only appeal by leave; all other appeals are by leave. MCL 600.8342(2); MCR 7.103.
In a misdemeanor or ordinance violation case tried in municipal or district court, an aggrieved party generally has a right of appeal from a final order or judgment (except for an order or a judgment based on a plea of guilty or nolo contendere) to the circuit court in the county in which the misdemeanor or ordinance violation was committed. MCL 770.3(1)(b); MCR 7.103(A)(1).
“The circuit court has jurisdiction of an appeal of right filed by an aggrieved party from the following:
(1) a final judgment or final order of a district or municipal court, except a judgment based on a plea of guilty or nolo contendere;
(2) a final order or decision of an agency governed by the Administrative Procedures Act, MCL 24.201 et seq.; and
(3) a final order or decision of an agency from which an appeal of right to the circuit court is provided by law.” MCR 7.103(A).18 See also MCL 770.3(1) (specifying appeals of right in criminal cases).
Aggrieved party. “‘To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.’”MCNA Ins Co v Dep’t of Technology, Mgt and Budget, 326 Mich App 740, 745 (2019), quoting Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290-292 (2006) (additional quotation marks and citation omitted). “‘An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, . . . [and] must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case.’” MCNA Ins Co, 326 Mich App at 745, quoting Federated Ins Co, 475 Mich at 290-292.
Final judgment or order. A district court’s postjudgment order awarding attorney fees or costs constitutes a final order that is appealable as of right to the circuit court. Matthew R Abel, PC v Grossman Investments Co, 302 Mich App 232, 234, 243 (2013).
A circuit court “acting in its appellate capacity” has “authority under MCR 7.114(D) and MCR 2.119(F)” to reconsider and reverse “its own order of acquittal” because it is “not final” and “subject to appellate review or reconsideration.” People v Simmons, ___ Mich ___, ___ (2022). Accordingly, the Michigan Supreme Court held that “any double jeopardy concerns related to [the circuit court’s] prior determination of the defendant’s innocence” were “eliminat[ed].” Id. at ___.
“The time limit for an appeal of right is jurisdictional.” MCR 7.104(A).19 An appeal of right must be taken within:
“(1) 21 days or the time allowed by statute after entry of the judgment, order, or decision appealed, or
(2) 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 relief from the judgment, order, or decision, if the motion was filed within:
(a) the initial 21-day period, or
(b) further time the trial court or agency may have allowed during that 21-day period.” MCR 7.104(A).
However, “[i]f a criminal defendant requests appointment of an attorney within 21 days after entry of the judgment of sentence, an appeal of right must be taken within 21 days after entry of an order:
(a) appointing or denying the appointment of an attorney, or
(b) denying a timely filed motion described in [MCR 7.104(A)](2).” MCR 7.104(A)(3).
Because the time limit for an appeal to the circuit court is jurisdictional, a court is deprived of jurisdiction when an appeal of right is not timely filed. See MCR 7.104(A); Quality Market v Detroit Bd of Zoning Appeals, 331 Mich App 388, 393 (2020). Thus, failing to timely file a claim of appeal “destroys the right to appeal[.]” Hoffman v Security Trust Co, 256 Mich 383, 385 (1931); see also Schlega v Detroit Bd of Zoning Appeals, 147 Mich App 79, 82 (1985). However, an appellant may file either an application for leave to appeal or a late appeal. See MCR 7.103(B)(1)(b); MCR 7.105(G); Schlega, 147 Mich App at 82. See Section 2.1(I) for information on late appeals and Section 2.1(G) for information on appeals by leave.
2.Manner of Filing
For jurisdiction to vest with the circuit court, an appellant must timely file:
•the claim, which must be signed by the appellant or the appellant’s attorney;20 and
•the appeal fee, unless the appellant is indigent.21 MCR 7.104(B)-(C).
In addition to the claim of appeal, an appellant must also file the following documents:
•a copy of the judgment, order, or decision appealed;
•an indication that the transcript has been ordered or that there is nothing to be transcribed;
•in an agency appeal, a copy of a request or order for a certified copy of the record to be sent to the circuit court;
•a true copy of the bond, if a bond has been filed;
•proof that money, property, or documents have been delivered or deposited as required by law;
•a copy of the register of actions, if any;
•proof that the appeal fee of the trial court or agency has been tendered;
•anything else required by law to be filed; and
•proof that all parties, the trial court or agency, and any other person entitled to notice of the appeal have been served. MCR 7.104(D).
MCR 7.104(E) requires the appellant to timely serve on the trial court or agency from which the appeal is taken:
•a copy of the claim of appeal;
•any fee required by law;
•any bond required by law22; and
•a copy of a written request that a certified copy of the record be sent to circuit court in an agency appeal, or an indication that the transcript has been ordered and payment made or secured, unless there is nothing to be transcribed in an appeal from a trial court.
Jurisdiction vests in the circuit court under MCR 7.104(A)(1) and MCR 7.104(B) when a defendant timely files an appeal and fees are paid or waived. See People v Simmons (On Reconsideration), 388 Mich App 70, 77 (2021), rev’d in part on other grounds ___ Mich ___ (2022).23 “This is true regardless of whether defendant properly serve[s] the prosecution with [the] claim of appeal because the service-of-process provisions contained in the court rules ‘are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant.’ MCR 2.105(J)(1). Thus, even if [a] defendant [does] not properly serve [the] claim of appeal on the prosecution, it [does] not divest the circuit court of jurisdiction to enter [a] judgment of acquittal.” Simmons, 388 Mich App at 77-78.
An appellee must file an appearance in the circuit court within 14 days after being served with the claim of appeal. MCR 7.104(F). “An appellee who does not file an appearance is not entitled to notice of further proceedings.” Id.
G.Appeal By Leave24
“The circuit court may grant leave to appeal from:
(1) a judgment or order of a trial court when
(a) no appeal of right exists, or
(b) an appeal of right could have been taken but was not timely filed;
(2) a final order or decision of an agency from which an appeal by leave to the circuit court is provided by law;
(3) an interlocutory order or decision of an agency if an appeal of right would have been available for a final order or decision and if waiting to appeal of right would not be an adequate remedy;
(4) a final order or decision of an agency if an appeal of right was not timely filed and a statute authorizes a late appeal; and
(5) a decision of the Michigan Parole Board to grant parole.”25 MCR 7.103(B).
“All appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application.” MCL 600.8342(4). See also MCL 770.3(1)(d). Additionally, a party may apply for leave to appeal to the circuit court from an interlocutory judgment or order in a felony, misdemeanor, or ordinance violation case. MCL 770.3(2).26
“An application for leave to appeal must be filed with the clerk of the circuit court within:
(1) 21 days or the time allowed by statute after entry of the judgment, order, or decision appealed, or
(2) 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 relief from the judgment, order, or decision if the motion was filed within:
(a) the initial 21-day period, or
(b) such further time as the trial court or agency may have allowed during that 21-day period.” MCR 7.105(A).
Additionally, if a defendant who has pleaded guilty or nolo contendere requests appointment of counsel within 21 days after entry of the judgment or sentence, “an application must be filed within 21 days after entry of an order:
(a) appointing or denying the appointment of an attorney, or
(b) denying a timely filed motion described in [MCR 7.105(A)](2).” MCR 7.105(A)(3).
In criminal cases, if the time for an appeal has passed, the court may still grant leave to appeal “upon conditions prescribed by court rules.” MCL 770.3(3).
See Section 2.1(I) for information on late appeals.
To apply for leave to appeal, MCR 7.105(B) requires an appellant to file:
•a signed application for leave to appeal;27
•a copy of the judgment, order, or decision appealed and the opinion or findings of the trial court or agency;
•in a trial court appeal, a copy of the register of actions;
•in an agency appeal, a copy of a request or order for a certified copy of the record to be sent to the circuit court;
•unless waived by stipulation of the parties or by trial court order, a copy of the relevant transcript or portion of transcript,28 or an indication that a transcript has been ordered or that there is nothing to be transcribed;
•proof that all parties, the trial court or agency, and any other person entitled to notice of the claim have been served29; and
•the appeal fee, unless the appellant is indigent.30
3.Answer
Within 21 days of service of the application, a signed answer that conforms to MCR 7.212(D), and proof of service of the answer, may be filed. MCR 7.105(C).
4.Reply
“Within 7 days after service of the answer, the appellant may file a reply brief that conforms to MCR 7.212(G).” MCR 7.105(D).
5.Decision on Application
The circuit court decides the application without oral argument, unless it otherwise directs. MCR 7.105(E)(1). Absent good cause, the decision must be made within 35 days of the filing date. MCR 7.105(E)(2).
The court may grant or deny leave to appeal or grant other relief,31 and it must promptly serve a copy of the order on the parties and the trial court or agency. MCR 7.105(E)(3).
If the application is granted, further proceedings are governed by MCR 7.104, except that:
•the appellant need not file a claim of appeal. MCR 7.105(E)(4)(a);
•within seven days after the order granting leave is entered, the appellant must file the documents required by MCR 7.104(D) and make service on the trial court as required by MCR 7.104(E); and
•an appellee may file a cross appeal claim within 14 days after the court serves the order granting leave to appeal. MCR 7.105(E)(4).
“Unless otherwise ordered, the appeal is limited to the issues raised in the application.” MCR 7.105(E)(5).
Indeed, while MCR 7.105 “governs applications for leave to appeal,” “once the circuit court grants the application, the rules under MCR 7.104—concerning appeals as of right—govern the subsequent proceedings[.]” People v Segura, ___ Mich App ___, ___ (2023). The “documents required under MCR 7.104(D), including ‘proof that the appeal fee of the trial court or agency has been tendered,’ must be submitted within seven days after the circuit court grants an application for leave to appeal.” Segura, ___ Mich App at ___ (citing MCR 7.105(E)(4)(b)). In Segura, defendant asserted that MCR 7.105 does not require proof of a filing fee. Segura, ___ Mich App at ___. However, the Court determined the defendant failed to provide any “’proof that the appeal fee of the trial court or agency [had] been tendered’” as required by MCR 7.104(D)(7). Segura, ___ Mich App at ___. “The circuit court was aware of this and gave notice of the deficiency through its clerk. The circuit court properly dismissed the appeal after defendant failed to remedy the deficiency despite having 14 days to do so.” Id. at ___. Accordingly, “defendant failed to show mistake, inadvertence, or neglect to justify reinstatement of the appeal, and the circuit court abused its discretion when it granted defendant’s motion for reconsideration.” Id. at ___ (noting the “proper medium was a motion for reinstatement, and the standard for granting such a motion was to show ‘mistake, inadvertence, or excusable neglect’” under MCR 7.113(A)(2) because “defendant was moving for reinstatement of a dismissal” rather than “reconsideration of the decision on a motion”).
6.Immediate Consideration
“When an appellant requires a decision on an application in fewer than 35 days, the appellant must file a motion for immediate consideration concisely stating why an immediate decision is required.” MCR 7.105(F).
Any appellee may file a cross appeal when an appeal of right is filed or when the circuit court grants leave to appeal. MCR 7.106(A)(1).
In a civil appeal with more than one plaintiff or defendant, “any other party may file a cross appeal against all or any of the other parties 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.” MCR 7.106(A)(2).
1.Timing
A cross appeal must be filed within 14 days after the cross appellant is served with the claim of appeal or after the order granting leave to appeal is entered. MCR 7.106(B); see also MCR 7.105(E)(4)(c). A party seeking leave to file a cross appeal after that time must proceed under MCR 7.105(F). MCR 7.106(F).
2.Manner of Filing
“To file a cross appeal, the cross appellant must file:
(1) a claim of cross appeal in the form required by MCR 7.104(C);
(2) any required fee;
(3) a copy of the judgment, order, or decision from which the cross appeal is taken; and
(4) proof that a copy of the claim of cross appeal was served on all parties.” MCR 7.106(C).
A cross appellant must also file the documents required by MCR 7.104(D) and make service on the trial court or agency as required by MCR 7.104(E), unless doing so would duplicate the appellant’s filing of the same document. MCR 7.106(D). The cross appellant need not order a transcript or file a court reporter’s certificate unless the initial appeal is dismissed. Id.
3.Initial Appeal Dismissed
“If the initial appeal is dismissed, the cross appeal may continue.” MCR 7.106(E). Within 14 days after the order dismissing the initial appeal, the cross appellant must file either the certificate of the court reporter or recorder if there is a transcript to be produced, or a statement indicating that there is nothing to be transcribed. Id.
When an appeal of right or an application for leave has not been timely filed, an appellant may file a late application, following the procedures for filing an application for leave set forth in MCR 7.105(B), accompanied by a statement of facts explaining the delay. MCR 7.105(G)(1). “The answer may challenge the claimed reasons for the delay. The circuit court may consider the length of and the reasons for the delay in deciding whether to grant the application.” Id. Notwithstanding, a late application may not be filed more than six months after entry of the order, judgment, or decision appealed; or after entry of an order denying a motion for a new trial, for rehearing or reconsideration, or for other relief from judgment, order or decision, if the motion was timely filed; or after entry of an order denying a motion for a new trial under MCR 6.610(H) or to withdraw a plea under MCR 6.610(F)(8). MCR 7.105(G)(2).
Notwithstanding MCR 7.105(G), “[t]he circuit court may grant leave to appeal from . . . a final order or decision of an agency if an appeal of right was not timely filed and a statute authorizes a late appeal[.]” MCR 7.103(B)(4) (emphasis added). The circuit court erred “to the extent that [it] concluded that it had the ability to consider [an] untimely [zoning board] appeal as a late application for leave to appeal” because MCL 125.3606(3), which governs zoning board appeals, “does not authorize an appeal by leave granted or a late appeal.” Quality Market v Detroit Bd of Zoning Appeals, 331 Mich App 388, 395 (2020).
“Appeals from the district court shall be on a written transcript of the record made in the district court or on a record settled and agreed to by the parties and approved by the court.” MCL 600.8341. See also MCR 7.109(A) (“[a]ppeals to the circuit court are heard on the original record”). “In reviewing whether an agency’s decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record.” Lawrence v Mich Unemployment Ins Agency, 320 Mich App 422, 432 (2017) (quotation marks and citation omitted).
The record must include the substance of any excluded evidence or the transcript of proceedings excluding it. MCR 7.109(A)(3). The parties may stipulate in writing regarding any matters relevant to the record “if the stipulation is made a part of the record on appeal and sent to the circuit court.” MCR 7.109(A)(4).
The appellant must serve a copy of the entire record on appeal on each appellee within 14 days after the transcript (or transcript substitute) is filed with the trial court or agency. MCR 7.109(F).32 The trial court or agency must promptly send the record to the circuit court, along with a certificate identifying the name of the case, listing the papers included, and indicating that the required fees have been paid and any required bond has been filed. MCR 7.109(G)(1).33 Weapons, drugs, or money are not to be sent unless requested by the circuit court, and the trial court may order the removal of any exhibits from the record. Id. The circuit court must send written notice to the parties when it receives the filed record. MCR 7.109(G)(3). If a motion is filed before the complete record on appeal is sent to the circuit court, the trial court or agency must, on request, send the circuit court the documents needed to decide the motion. MCR 7.109(E).
“On the appellant’s motion, with notice to the appellee, the trial court or agency may order that no transcript or some portion less than the full transcript 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.” MCR 7.109(B)(1)(b).34
Committee Tip:
If the transcripts in an appeal from district court are lengthy, but not all transcripts are required to resolve the issues on appeal, a motion to settle the record may establish that less than all of the transcripts will comprise the record on appeal.
1.Generally
“Motion practice in a circuit court appeal is governed by MCR 2.119. Motions may include special motions identified in MCR 7.211(C).[35] Absent good cause, the court shall decide motions within 28 days after the hearing date.” MCR 7.110.
2.Motions for Rehearing or Reconsideration
A circuit court, acting as an appellate court in review of a district court order or judgment, may reconsider its own previous order or judgment on the matter; motions for reconsideration are governed by MCR 2.119(F). MCR 7.114(D). “No response to the motion may be filed, and there is no oral argument, unless the court otherwise directs.” MCR 2.119(F)(2).
MCR 2.119(F)(3) provides:
“Generally, and without restricting the discretion of the court, 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.”
However, MCR 2.119(F)(3) “does not categorically prevent a trial court from revisiting an issue even when [a] motion for reconsideration presents the same issue already ruled on; in fact, it allows considerable discretion to correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754 (2014); see also People v Walters, 266 Mich App 341, 350 (2005) (adherence to the palpable error provision contained in MCR 2.119(F)(3) is not required; rather, the provision offers guidance to a court by suggesting when it may be appropriate to grant a party’s motion for reconsideration).
Where a different judge is seated in the circuit court that issued the ruling or order for which a party seeks reconsideration, the judge reviews the prior court’s factual findings for clear error. Walters, 266 Mich App at 352. The fact that the successor judge is reviewing the matter for the first time does not authorize the judge to conduct a de novo review. Id. at 352-353.
“Within 28 days after the circuit court provides written notice under MCR 7.109(G)(3) that the record on appeal is filed with the circuit court, the appellant must file a brief[.]” MCR 7.111(A)(1)(a). An appellee may file a brief within 21 days after being served with the appellant’s brief. MCR 7.111(A)(2). The appellant may file a reply brief within 14 days after service of the appellee’s brief. MCR 7.111(A)(3).
The time for an appellant or an appellee to file a brief may be extended by stipulation or by the circuit court, but the filing of a motion to extend the time does not stay the time for filing a brief. MCR 7.111(A)(1)(a); MCR 7.111(A)(2).
If an appellant fails to timely file a brief, the appeal may be considered abandoned and dismissed on 14 days’ notice to the parties. MCR 7.111(A)(1)(b). The filing of a conforming brief after notice is sent does not preclude dismissal unless the appellant provides a reasonable excuse for the late filing. Id.
Timing for briefs in cross appeals is the same as for direct appeals. MCR 7.111(A)(4). The circuit court may not abridge the appellant’s right to file a reply brief. Lawrence v Mich Unemployment Ins Agency, 320 Mich App 422, 442-443 (2017) (holding that the circuit court’s scheduling order, which provided that the claimant-appellant was not entitled to a reply brief, “clearly violated [her] right to file a reply brief under the plain and unambiguous language of MCR 7.111(A)(3),” but that she was not entitled to relief because she did not establish that the violation “affected the outcome of the proceedings”).
All briefs must conform to MCR 7.212(B) (governing length and form of briefs). See MCR 7.111(B). In addition to these requirements, the appellant’s brief must conform to MCR 7.212(C); the appellee’s brief must conform to MCR 7.212(D); and the appellant’s reply brief must conform to MCR 7.212(G). MCR 7.111(A)(1)(a); MCR 7.111(A)(2)-(3); MCR 7.111(B). Additionally, all briefs must be served on all other parties to the appeal. MCR 7.111(A)(1)(a); MCR 7.111(A)(2)-(4). “If, on its own initiative or on a party’s motion, the circuit court concludes that a brief does not substantially comply with the requirements in [MCR 7.111], it may order the party filing the brief to correct the deficiencies within a specified time or it may strike the nonconforming brief.” MCR 7.111(D).
1.Involuntary
“If the appellant fails to pursue the appeal in conformity with the court rules, the circuit court will notify the parties that the appeal shall be dismissed unless the deficiency is remedied within 14 days after service of the notice.” MCR 7.113(A)(1). The appeal may be reinstated if, within 14 days of the involuntary dismissal, the appellant shows mistake, inadvertence, or excusable neglect. MCR 7.113(A)(2).
Committee Tip:
Incomplete or incorrectly filed appeals can be brought to the attention of the appellant by issuing a 14-day Notice of Intent to Dismiss. Though the court should not provide legal advice as to how to satisfactorily file the appeal, it can direct appellant to the court rule(s) that remain(s) unsatisfied.
2.Voluntary
If the parties file a signed stipulation agreeing to dismiss the appeal or the appellant files an unopposed motion to withdraw the appeal, the circuit court must enter an order of dismissal. MCR 7.113(B).
3.Notice
Immediately on its entry, a copy of an order dismissing an appeal must be sent to the parties and the trial court or agency. MCR 7.113(C).
A party is entitled to oral argument if it has filed a timely brief with “ORAL ARGUMENT REQUESTED” in capital letters or boldface type on the title page of the brief. MCR 7.111(C). Any party failing to timely file and serve a brief forfeits oral argument, although the court may grant a motion to reinstate oral argument for good cause shown. MCR 7.111(A)(6).
When a party makes a request in accordance with MCR 7.111(C), the circuit court must schedule oral argument “unless it concludes that the briefs and record adequately present the facts and legal arguments, and the court’s deliberation would not be significantly aided by oral argument.” MCR 7.114(A).
The circuit court must decide the appeal by either an oral or a written opinion, and issue an order.36 MCR 7.114(B). “The court’s order is its judgment.” Id.
A judgment is effective:
•after expiration of the period for filing a timely application for leave to appeal in the Court of Appeals;
•after the Court of Appeals decides a case for which an application for leave is filed; or
•after a time period otherwise ordered by the circuit court or the Court of Appeals. MCR 7.114(C).
Enforcement of the judgment is to be obtained in the trial court or agency after the record is returned as provided in MCR 7.109(H). MCR 7.114(C).
“In addition to its general appellate powers, the circuit court may grant relief as provided in MCR 7.216.”37 MCR 7.112.
Q.Assessment of Costs in Civil Appeals
MCR 7.115(A) provides that “the prevailing party in a civil case” is generally entitled to costs. The clerk of the court receives the certified or verified bill of costs, verifies the bill, addresses any objections, and taxes the available costs. See MCR 7.115(B)-(D). The clerk’s action “will be reviewed by the circuit court on motion of either party filed within 7 days from the date of taxation, but on review only those affidavits or objections that were previously filed with the clerk may be considered by the court.” MCR 7.115(E). “A prevailing party may tax only the reasonable costs and fees incurred in the appeal, including” those listed in MCR 7.115(F).