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Is It Proper to Raise New Arguments or Submit New Evidence in a Motion for Reconsideration?

A version of this article was previously published in the Michigan Defense Quarterly, Vol. 40, No. 3 (2024). There may be times when a party facing an adverse summary disposition decision (whether it be the grant or denial...more

Michigan Court of Appeals Clarifies Application of the “Plain Error” Rule

One of the more well established appellate doctrines in Michigan is that a claim of error generally won’t be considered on appeal unless it is preserved in the trial court.  That isn’t necessarily the case in criminal...more

Decisions That Have Been Reversed or Vacated “On Other Grounds”: Do They Still Have Precedential Value?

Many of us have, at one time or another, found ourselves citing a decision that had been either reversed or vacated “on other grounds.” But are those decisions precedential? Does it matter whether the decision was “reversed”...more

5/10/2023  /  Appeals , Reversal , Vacated

Issues Becoming Moot on Appeal

Although appellate courts are generally obligated to address the issues that are properly brought before them, that is not the case when it comes to issues that have been rendered moot by subsequent developments—either in the...more

Effect of Post-Judgment Motions on the Time to Appeal

There are a number of reasons why parties in a civil case might consider filing a post-judgment motion before appealing an adverse decision. In fact, sometimes, a post-judgment motion is required to preserve an issue for...more

Scope of Cross-Appeals in the Michigan Court of Appeals

In the Michigan Court of Appeals, when a party files an appeal as of right (or the Court of Appeals grants leave to appeal), the appellee is entitled to file a cross-appeal. MCR 7.207(A)(1) (“When an appeal of right is filed...more

Effect of a Change in the Law on Appeal

On occasion, a development in the law while a case is pending on appeal may present an additional argument to raise.  Although the general rule is that an appellant cannot raise issues for the first time on appeal, Michigan...more

Effect of a Stipulated Dismissal “Without Prejudice” on Appellate Jurisdiction

On occasion, a plaintiff faced with the dismissal of one or more, but not all, of its claims may wish to pursue an immediate appeal without losing the ability to pursue its remaining claims later on. A similar situation...more

Supreme Court Orders as Binding Precedent

The Michigan Supreme Court has a well-known practice of issuing peremptory orders on pending applications for leave to appeal that decide the application without actually granting leave. Consider this order in DiLuigi v RBS...more

Citing Unpublished Opinions

It’s well-understood that unpublished decisions don’t have precedential value under the doctrine of stare decisis. The Michigan Court of Appeals has even cautioned against citing them, warning that “[c]onsideration of...more

12/6/2019  /  Appeals , Unpublished Opinions

Effect of Denials of Leave to Appeal “For Lack of Merit”

For some time now, a subject of discussion among appellate practitioners has been the effect of orders from the Michigan Court of Appeals denying applications for leave to appeal “for lack of merit in the grounds presented,”...more

12/6/2019  /  Appeals , Leave to Appeal

Can There Be More Than One “Final Order” for Purposes of Appeal?

As a general rule, the Michigan Court of Appeals’ jurisdiction is limited to appeals of right from a “final judgment or final order.” MCR 7.203(A)(1). In most cases, that will be the “the first judgment or order that disposes...more

A Word of Caution Against Stipulating to a Judgment or Order Reserving Issues for Potential Future Appeals

With certain limited exceptions, only “final” decisions are appealable as a matter of right. In Michigan, that typically means “the first judgment or order that disposes of all the claims and adjudicates the rights and...more

11/5/2018  /  Appeals , Reversal , Stipulated Judgment

Appealability of Dismissals “Without Prejudice”*

A fundamental rule of appellate jurisdiction is the need for a “final” decision. In Michigan, a final judgment or order is typically “the first judgment or order that disposes of all the claims and adjudicates the rights and...more

11/2/2018  /  Appeals , Dismissals , Prejudice

Jurisdictional vs Nonjurisdictional Appeal Filing Deadlines

Most of us think of appeal filing deadlines as absolute. That certainly is the case under the Michigan Court Rules. But as demonstrated by a recent decision from the United States Supreme Court, Hamer v Neighborhood Housing...more

Michigan Supreme Court Holds That a Plaintiff is Not Permitted to Request a Change of Venue

When venue of a civil action is improper, Michigan Court Rule 2.223(A) provides that the court “shall” order a change of venue “on timely motion of a defendant,” or that it “may” order a change of venue “on its own initiative...more

Michigan Court of Appeals Clarifies That the Offer of Judgment Rule Applies to a Judgment Entered on an Arbitration Award

Under Michigan’s “offer of judgment” rule, MCR 2.405, costs and attorney fees may be imposed on a party that rejects an offer to stipulate to entry of a judgment and fails to obtain a more favorable “verdict.” In Simcor...more

Cash Value of Life Insurance Policy Exempt From Garnishment

DC Mex Holdings LLC v Affordable Land LLC and Dale Fuller, ___ Mich. App. ___ (July 25, 2017), Case no. 332439 - Michigan’s Court of Appeals recently issued an opinion interpreting a statutory provision exempting insurance...more

U.S. Supreme Court Limits the Exercise of Specific Personal Jurisdiction by State Courts

The U.S. Supreme Court recently tightened the reins when it comes to state courts’ exercise of case-based, specific personal jurisdiction over out-of-state companies. In Bristol-Myers Squibb Co. v. Superior Court of...more

Michigan Supreme Court Clarifies Application of the Statute of Limitations to Shareholder Oppression Claims

In the recent case of Frank v Linkner, ___ Mich ___; ___ NW2d ___ (2017), the Michigan Supreme Court clarified that a claim for member oppression under Michigan’s Limited Liability Company Act (“LLCA”), MCL 450.4101 et seq.,...more

Michigan Supreme Court Holds That an Insurer’s Untimely Payment of Underinsured Motorist Benefits is Subject To Penalty Interest...

The Michigan Uniform Trade Practices Act (UTPA) provides for 12% penalty interest on certain no-fault insurance claims that are not timely paid by the insurer. For “third party tort claimants,” penalty interest only applies...more

Michigan Supreme Court Holds That the Federal “Rule of Reason” Applies in Evaluating the Enforceability of Noncompete Agreements...

The Michigan Antitrust Reform Act (MARA) contains a specific provision, MCL 445.774a, that governs the enforceability of noncompete agreements between employees and employers. MARA does not, however, provide standards for...more

Michigan Supreme Court Holds That Agency Principles Apply to Determining the Scope of an Arbitration Clause

It is well established that whether a particular dispute falls within the scope of an arbitration clause depends on the language of the parties’ agreement. In the recent case of Altobelli v Hartmann, the Michigan Supreme...more

Michigan Supreme Court Clarifies That District Court Jurisdiction is Determined by Looking at the “Amount in Controversy” at the...

Michigan district courts have exclusive subject-matter jurisdiction over civil actions when the “amount in controversy” does not exceed $25,000. So what happens if a plaintiff files a lawsuit in district court seeking damages...more

Michigan Consumer Protection Act Claims Do Not Require Proof of Intent to Deceive

Because the Michigan Consumer Protection Act (MCPA) was derivative of common law fraud, many have argued that all claims brought under the MCPA require a plaintiff to prove fraud-like elements in order to create liability...more

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