Opinion
SC: 159860 COA: 344109
10-30-2019
Kyle SCHEUNEMAN and Lindy Scheuneman, Plaintiffs-Appellees, v. KENT POWER INC., Defendant-Appellant.
Order
On order of the Court, the motion for an order permitting the defendant’s application for leave to appeal to be deemed filed nunc pro tunc on the date of the electronic transmission to the Court of Appeals is DENIED. Under some circumstances, the Court may "enter an order permitting a document to be deemed filed nunc pro tunc on the date of the unsuccessful transmission." Administrative Order 2014-23, 497 Mich. cxxviii (2014). But such relief is warranted only where the moving party proves that "the transmission failed because of the failure of the TrueFiling system to process the electronic document or because of the court’s computer system’s failure to receive the document." Id . at cxxix. Here, there was no transmission failure. It is undisputed that the TrueFiling system transmitted the electronic document to the selected court and the selected court’s computer system received the document. To the extent that the defendant alleges that transmission to this Court failed because of an apparent default setting in the TrueFiling system, the defendant must also prove that "the transmission failure was not caused, in whole or in part, by the action or inaction of the party." Id . Here, the defendant cannot make this showing because the TrueFiling system provided clear notice to the defendant before and after transmission that it had selected the wrong court in which to file its application. Accordingly, the defendant is not entitled to the relief requested.
Viviano, J., would accept the application as timely filed.