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  1. #1
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    Aug 2015
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    Default Can You Appeal a Case that You Voluntarily Dismiss

    My question involves court procedures for the state of: MI (state court)

    Hello,

    I got two questions about a hypothetical situation:

    Today the plaintiff loses in a motion for partial summary disposition.
    100 days later (well after the 21 days for leave to appeal, MCR 7.105(A)(1)), plaintiff dismisses the rest of the case and closes it.

    1. Can the plaintiff then appeal of right the ruling made three months earlier (despite him being the one who closed the case)?
    2. Assume that by the time the COA reverses that ruling, the plaintiff relocated overseas. Can he (pro se) pursue the relief from abroad?

    To paraphrase the first question: is today's ruling appealable only by an application for leave to appeal?

    On the one hand, it seems that a leave to appeal could be denied, entails an additional brief, and possibly a duplicate fee. On the other hand, Appeal of Right (MCR 7.104(A)(1)) refers to the last/final order, which is not the one I intend to appeal. Somehow this is looks like a 'chicken and egg' problem.

    As always, thank you.

  2. #2
    Join Date
    Oct 2014
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    Default Re: Is It Functional to Dismiss the Remaining Counts and Force an Appeal of Right

    So, the time line that the plaintiff loses a motion for partial summary judgment. 100 days later the plaintiff then dismisses the case and the case is closed. Why did the plaintiff do that if what he really wanted to do was appeal the court’s decision? By dismissing the case and having it closed, in every state I’m familiar with the courts lose jurisdiction over the matter once the case is dismissed and closed, making any appeal at that point impossible. The basic rule for normal appeals in most every jurisdiction is that appeals of a decision by the trial court is only eligible for appeal once final judgment in the entire case is entered; i.e. when the court makes it's final judgement or order that would end the case. The idea of this rule is so that the appeal of all decisions that the party wishes to make will be brought at the same time, thus saving the courts of appeals from having to see the same case over and over. So the plaintiff generally would have to have waited for the court to enter a final judgement in the matter, either a judgment for plaintiff or a decision in favor of the defendant. The plaintiff here cut that off by dismissing his own case. Under the facts as you put them it may not be possible to appeal either as of right or by leave. That would certainly be the case where I practice. The plaintiff has made a mess of it by doing this and if there is any hope of reviving the case, he had better seek advice from a civil litigation attorney in MI to get it right.

    The plaintiff can continue to pursue the case from abroad, if he can fix the mess he made by dismissing it, though it will of course be more difficult and costly to do that. He would have to travel back to the court for hearings and the trial, and those expenses generally cannot be added to whatever judgment the plaintiff might obtain.

  3. #3
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    Aug 2015
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    181

    Default Re: Is It Functional to Dismiss the Remaining Counts and Force an Appeal of Right

    Thank you TaxingMatters,

    Quote Quoting Taxing Matters
    View Post
    Why did the plaintiff do that if what he really wanted to do was appeal the court’s decision?
    The case hasn't been closed/dismissed. In fact I'm within the 21-day period to apply for leave to appeal. The hypothetical scenario was a "strategy", which now I understand would be like shooting myself in the foot.

    My rationale for that possible "strategy" was so that I can appeal (of right) without the risk that my application (for leave to appeal) be denied. Also, I'm concerned that by the time I can appeal as of right, the COA would say "We won't review the partial summary disposition from 100 days ago because that one should have been appealed through leave-to-appeal soon after that ruling was made (21 days)".

    Also thanks for the clarification that hearings cannot be attended by phone/video.

  4. #4
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    Default Re: Is It Functional to Dismiss the Remaining Counts and Force an Appeal of Right

    Quote Quoting LexisLutor
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    The case hasn't been closed/dismissed. In fact I'm within the 21-day period to apply for leave to appeal. The hypothetical scenario was a "strategy", which now I understand would be like shooting myself in the foot.

    My rationale for that possible "strategy" was so that I can appeal (of right) without the risk that my application (for leave to appeal) be denied. Also, I'm concerned that by the time I can appeal as of right, the COA would say "We won't review the partial summary disposition from 100 days ago because that one should have been appealed through leave-to-appeal soon after that ruling was made (21 days)".
    Yes, it would be like shooting yourself in the foot to do that strategy. And you don't lose your right to appeal the partial summary judgment motion by waiting until final judgment in the case is entered; the process is designed to bring the appeal for all the issues you have at the same time after the final judgment was entered as I explained before. You can do that as a matter of right, the 21 days don't start to run until the final judgment has been made.

  5. #5
    Join Date
    Aug 2015
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    181

    Default Re: Is It Functional to Dismiss the Remaining Counts and Force an Appeal of Right

    Errata: I meant MCR 7.205(A)(1) instead of MCR 7.105(A)(1), and MCR 7.204(A)(1) instead of MCR 7.104(A)(1).
    I presume it makes no difference as to the explanation by TaxingMatters.

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