A brief discussion on motion practice requirements is contained in this section. For a more comprehensive discussion, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9.
Motion practice is governed by MCR 2.119. MCR 3.922(D).
Note: In civil cases, MCR 2.116(C)(10) allows a court to grant a motion for summary disposition when “there is no genuine issue as to any material fact . . . .” This rule does not apply to child protective proceedings. In re PAP, 247 Mich App 148, 154-155 (2001). In In re PAP, supra at 155, the Court of Appeals rejected the Department of Health and Human Services’s (DHHS’s) argument on appeal that because MCR 2.116(G) provides that MCR 2.119 applies to summary disposition motions, and MCR 2.119 applies to child protective proceedings, MCR 2.116 applies to child protective proceedings. The Court of Appeals termed the DHHS’s logic “specious” and concluded that the argument was “simply without merit.” Id.
Unless the court rules or the trial court (for good cause) state otherwise, a written motion (excluding ex parte motions), notice of hearing, and any supporting brief or affidavit must be served:
(1) at least nine days before the time set for hearing if by first-class mail.1
(2) at least seven days before the time set for hearing if delivered to the attorney under MCR 2.107(C)(1), delivered to the party under MCR 2.107(C)(2), or delivered electronically under MCR 1.109(G)(6)(a). MCR 2.119(C)(1).
Unless the court rules or the trial court (for good cause) state otherwise, any response to a motion (including a brief or affidavits) must be served:
(1) at least five days before the hearing if by first-class mail.
(2) at least three days before the hearing if delivered to the attorney under MCR 2.107(C)(1), delivered to the party under MCR 2.107(C)(2), or delivered electronically under MCR 1.109(G)(6)(a).2 MCR 2.119(C)(2).
The court may set a different time for serving a motion or a response. MCR 2.119(C)(3). “[The court’s] authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.” Id.
Unless the court sets a different time, a motion must be filed at least seven days before the hearing, and any response to a motion required or permitted must be filed at least three days before the hearing. MCR 2.119(C)(4).
B.Required Form of Written Motions
Unless a motion is made during a hearing or trial, it must be in writing, state with particularity the grounds and authority on which it is based, state the relief or order sought, and be signed by the party or attorney as provided in MCR 1.109(D)(3) and [MCR 1.109](E).” MCR 2.119(A)(1).
A motion or response to a motion that presents an issue of law must be accompanied by a brief citing authority for its proposition.3 MCR 2.119(A)(2). A trial court should not deny a motion if it is filed without a brief, and the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Property Mgmt, LLC, 277 Mich App 622, 625-626 (2008).
Unless the court permits otherwise, the combined length of a motion and brief may not exceed 20 pages double spaced.4 MCR 2.119(A)(2)(a). Permission to file a motion and brief in excess of the 20-page limit should be requested sufficiently in advance of the hearing on the motion to allow the opposing party adequate opportunity for analysis and response. See People v Leonard, 224 Mich App 569, 578-579 (1997).
The motion and notice of hearing may be combined into one document. MCR 2.119(A)(3).
Unless specifically required by rule or statute, a pretrial motion need not be verified or accompanied by an affidavit. See MCR 1.109(D)(3).
Although an affidavit is not required, if one is included with a motion, MCR 2.119(B) sets out its required form. Porter v Porter, 285 Mich App 450, 461 (2009). Under MCR 2.119(B)(1), an affidavit filed in support of or in opposition to a motion must:
“(a) be made on personal knowledge;
(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and
(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.”
In addition, an affidavit must:
(1) be verified by oath or affirmation, MCR 1.109(D)(1)(f);
(2) include sworn or certified copies of any documents it refers to, unless the documents
(a) have already been filed;
(b) are matters of public record in the county in which the action is pending;
(c) are in the adverse party’s possession, and the affidavit or motion states this fact; or
(d) are of such nature that it would be unreasonable or impracticable to attach them, and the affidavit or motion states this fact, MCR 2.119(B)(2); and
(3) be served on the opposing party within the same time frame as written motions, MCR 2.119(C)(1).5
Generally, a trial court has discretion to determine whether an evidentiary hearing is necessary. IGCFCO III, LLC v One Way Loans, LLC, ___ Mich App ___, ___ (2024) (“The trial court need not hold an evidentiary hearing if it can sufficiently decide an issue on the basis of evidence already presented.”). See also MacIntyre v MacIntyre, 472 Mich 882 (2005) (“[A]s long as the circuit court is able to determine independently what custodial placement is in the best interests of the children, an evidentiary hearing is not required in all cases.”) (cleaned up); MCR 3.210(C)(8) (“In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.”).
An evidentiary hearing must be conducted whenever a defendant challenges the admissibility of evidence on constitutional grounds. People v Reynolds, 93 Mich App 516, 519 (1979). Where a defendant fails to substantiate a claim that evidence is inadmissible on constitutional grounds or it is apparent that the defendant’s allegations do not rise to the level of a constitutional violation, no evidentiary hearing is required. People v Johnson, 202 Mich App 281, 285 (1993).
The parties have the right to a judge at an evidentiary hearing. See MCR 3.912(B) (parties have the right to a judge at a hearing on the formal calendar,6 which includes evidentiary hearings).
The use of videoconferencing technology to conduct evidentiary hearings is governed by MCR 3.904(B). See Section 1.7.
E.Motions for Rehearing or Reconsideration
1.Requirements
A motion for reconsideration or rehearing must be filed and served 21 days after entry of an order deciding the motion, unless another rule provides a different procedure for reconsideration of a decision. MCR 2.119(F)(1).
Responses and oral arguments are not permitted unless ordered by the court. MCR 2.119(F)(2).
“The moving party must demonstrate a palpable error by which the court and the parties have been misled” and show that correcting the error will result in a different disposition in order for a court to grant a motion for rehearing or reconsideration. MCR 2.119(F)(3).
“‘[R]ehearing [or reconsideration] will not be ordered on the ground merely that a change of members of the bench has either taken place, or is about to occur.’” People v White (Kadeem) (White (Kadeem) II), 493 Mich 962, 962 (2013) (quoting Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883), and applying MCR 2.119(F)(3) to a motion for rehearing of the Michigan Supreme Court’s decision7 affirming the judgment of the Court of Appeals).8
2.Decision
MCR 2.119(F) does not restrict the court’s discretion to hear or consider motions it has already denied. Smith v Sinai Hosp of Detroit, 152 Mich App 716, 722-723 (1986). The rule merely provides guidance to the court on when it may deny motions for reconsideration or rehearing. Smith, supra at 723.
Generally, a motion for rehearing or reconsideration that presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. MCR 2.119(F)(3). However, MCR 2.119(F)(3) “does not categorically prevent a trial court from revisiting an issue even when the motion for reconsideration presents the same issue already ruled upon; in fact, it allows considerable discretion to correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754 (2014), citing In re Moukalled Estate, 269 Mich App 708, 714 (2006).
“The purpose of MCR 2.119(F) is to allow a trial court to immediately correct any obvious mistakes it may have made in ruling on a motion, which would otherwise be subject to correction on appeal, but at a much greater expense to the parties. The time requirement for filing a motion for reconsideration or rehearing insures that the motion will be brought expeditiously.” Bers v Bers, 161 Mich App 457, 462 (1987) (citation omitted).
A court’s decision to grant or deny a motion for reconsideration is an exercise of discretion. Kokx v Bylenga, 241 Mich App 655, 658-659 (2000). “[MCR 2.119(F)] allows the court considerable discretion in granting reconsideration to correct mistakes, to preserve judicial economy, and to minimize costs to the parties.” Kokx, supra at 659. The court also has discretion to limit its reconsideration to the issues it believes warrant further consideration. Id.
A motion for reconsideration or rehearing may not be entertained by a court after entry of an order changing venue to another court, unless the order specifies an effective date. Frankfurth v Detroit Med Ctr, 297 Mich App 654, 656, 658-661 (2012) (holding that “once a transfer of venue is made, the transferee court has full jurisdiction over the action [under MCL 600.1651] and, therefore, the transferor court has none[; a]ny motion for rehearing or reconsideration would have to be heard by whichever court has jurisdiction over the action at the time the motion is brought, which, after entry of an order changing venue, would be the transferee court[]”).9
1 MCR 2.107(C)(3) defines mailing a copy as “enclosing it in a sealed envelope with first class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete at the time of mailing.”
2 “Notwithstanding any other provision of [MCR 2.107], until further order of the Court, all service of process except for case initiation must be performed using electronic means (e-Filing where available, email, or fax, where available) to the greatest extent possible. Email transmission does not require agreement by the other party(s) but should otherwise comply as much as possible with the provisions of [MCR 2.107(C)(4)].” MCR 2.107(G).
3 Citations of unpublished Court of Appeals opinions “must comply with the provisions of MCR 7.215(C)[.]” MCR 2.119(A)(2).
4 Many jurisdictions have local court rules governing the form of motions.
5 See Section 9.4(A) on time requirements for written motions.
6 MCR 3.903(A)(10) defines formal calendar as “judicial proceedings other than a delinquency proceeding on the consent calendar, a preliminary inquiry, or a preliminary hearing of a delinquency or child protective proceeding.”
7 People v White (Kadeem) (White (Kadeem) I), 493 Mich 187 (2013).
8 On April 12, 2013, the Michigan Supreme Court issued similar orders applying MCR 2.119(F)(3) to motions for reconsideration in several civil cases. See, e.g., Boertmann v Cincinnati Ins Co, 493 Mich 963 (2013).
9 The Frankfurth Court noted that “the better practice might be to make orders changing venue effective as of some reasonable time [after entry of that order].” Frankfurth, 297 Mich App at 662.