Opinion
September 23, 2008.
Special Orders
Orders Entered September 23, 2008.
On order of the Court, this is to advise that the Court is considering two alternative amendments of Rule 7.205 of the Michigan Court Rules. Before determining whether either of the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposals or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of either proposal in its present form.
[The present language would be amended as indicated below:] ALTERNATIVE A
RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.
(A)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(2) [Unchanged.]
(3) Except as provided in subrule (F)(4), leave to appeal may not be granted if an application for leave to appeal is filed more than 12 months after the later of:
(a) [Unchanged.]
(b) entry of the order or judgment to be appealed from, but if a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed was filed within the initial 21- day appeal period or within further time the trial court has allowed for good cause during that 21-day period, then the 12 months are counted from the entry of the order deciding the motion.
(c) The 12-month limitation period provided in subrule (F)(3) is tolled for the period when an appeal is pending pursuant to a claim of appeal.
(4)-(5) [Unchanged.]
(G) [Unchanged.]
ALTERNATIVE B
RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.
(A)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(2) [Unchanged.]
(3) Except as provided in subrule (F)(4), leave to appeal may not be granted if an application for leave to appeal is filed more than 12 months after the later of:
(a) [Unchanged.]
(b) entry of the order or judgment to be appealed from, but if a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed was filed within the initial 21- day appeal period or within further time the trial court has allowed for good cause during that 21-day period, then the 12 months are counted from the entry of the order deciding the motion.
(c) The 12-month limitation period provided in subrule (F)(3) is not tolled for the period when an appeal is pending pursuant to a claim of appeal, except as otherwise allowed by this rule.
(4)-(5) [Unchanged.]
(G) [Unchanged.]
Staff Comment: Alternative A would adopt the principle that the period in which to file an application for delayed appeal pursuant to MCR 7.205(F) is tolled while a claim of appeal is pending.
Alternative B would clarify that the period in which to file an application for delayed appeal pursuant to MCR 7.205(F) is not tolled while a claim of appeal is pending, except as allowed by the rule.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2007-40. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 2.112 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering an amendment of Rule 2.112 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below:]
RULE 2.112. PLEADING SPECIAL MATTERS.
(A)-(J) [Unchanged.]
(K) Fault of Nonparties; Notice.
(1) Applicability. This rule applies to actions based on tort or another legal theory seeking damages for personal injury, property damage, and or wrongful death to which MCL 600.2957 and MCL 600.6304, as amended by 1995 PA 249, apply.
(2)-(4) [Unchanged.]
(L)-(M) [Unchanged.]
Staff Comment: The proposed amendment of MCR 2.112 would clarify that the comparative negligence provisions apply to actions based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death. This language would more closely parallel the statutory provisions of MCL 600.2957 and MCL 600.6304, as amended by 1995 PA 249.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2007-41. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULES 7.302, 7.314, AND 7.316 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering amendments of Rules 7.302, 7.314, and 7.316 of the Michigan Court Rules. Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposals or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below:]
RULE 7.302. APPLICATION FOR LEAVE TO APPEAL.
(A)-(E)[Unchanged.]
(F) If on its own initiative or on a party's motion, the court concludes that a brief does not substantially comply with the requirements of this rule, it may order the party who filed the brief to file a supplemental brief within a specified time correcting the deficiencies, or it may strike the nonconforming brief.
(F)-(H)[Unchanged but relettered (G)-(I).]
RULE 7.314 APPEALS IN WHICH NO PROGRESS HAS BEEN MADE.
(A)-(B)[Unchanged.]
(C) The court may dismiss an appeal, application, or an original proceeding for lack of jurisdiction or failure of a party to pursue the case in conformity with the rules.
RULE 7.316. MISCELLANEOUS RELIEF OBTAINABLE IN SUPREME COURT.
(A) Relief Obtainable. The Supreme Court may, at any time, in addition to its general powers:
(1) exercise any or all of the powers of amendment of the court or tribunal below;
(2) on reasonable notice as it may require, allow substitution of parties by reason of marriage, death, bankruptcy, assignment, or any other cause; allow new parties to be added or parties to be dropped; or allow parties to be rearranged as appellants or appellees;
(3) permit the reasons or grounds of appeal to be amended or new grounds to be added;
(4) permit the transcript or record to be amended by correcting errors or adding matters which should have been included;
(5) adjourn the case until further evidence is taken and brought before it, as the Court may deem necessary in order to do justice;
(6) draw inferences of fact;
(7) enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require; or
(8) if a judgment notwithstanding the verdict is set aside on appeal, grant a new trial or other relief as it deems just.
(9) dismiss an appeal, application, or an original proceeding for lack of jurisdiction or failure of a party to pursue the case in conformity with the rules.
(B)-(D)[Unchanged.]
Staff Comment: These proposals would give the Supreme Court the authority to correct a deficient brief or to strike a nonconforming brief, similar to the authority given the Court of Appeals in MCR 7.212(1). The proposals would also allow the Supreme Court to dismiss a case in which a party failed to pursue the case in conformity with the rules.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2007-42. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.