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  1. #1
    Join Date
    Aug 2015

    Default How to Move to Expand the Record in the Court of Appeals

    My question involves court procedures for the state of: MI


    This is in regard to expanding the record when the case is in the Court Of Appeals.

    I brought an action in state court. The judge granted defendant's motion for summary disposition and I appealed. The appellate briefing phase elapsed several months ago.

    I recently got new evidence showing that the defendant obtained summary disposition by fraud and misrepresentation, whence I could move pursuant to MCR 2.612(C)(1)(b) and (c) (Relief from Judgment or Order). The new evidence satisfies the conditions in MCR 2.611(A)(1)(a) and (f): material evidence, newly discovered which could not with reasonable dilligence have been discovered and produced at trial. The defendant and her accomplice are precisely the ones who filed this evidence in other cases in the same trial court. Therefore, the new evidence is undisputed.

    Since COA currently has jurisdiction, I went to the COA and filed a motion under MCR 7.216(A)(4) and (3) to expand the record and to add grounds for appeal, respectively, with my Supplemental Brief attached. I'm convinced that my motion and supplemental brief are robust. I even cited a case where the COA clearly encourages that new evidence be promptly submitted by motion under 7.216(A)(4). The defendant didn't oppose my COA motion.

    The COA denied my motion without stating the reason(s) for denial. I'm confident I followed the appellate rules (MCR 7). Was I supposed to file the new evidence through the trial court? Neither MCR 7 nor IOP 7.216(A) gives any indication to do so.

    Motions under MCR 2.612(C) are to be brought within a year after the judgment was entered. The year hasn't elapsed yet. However, this is a catch-22: The trial court does not have jurisdiction right now, but the year will likely elapse by the time COA decides the appeal. I'm puzzled, your insight on how this works would be appreciated.


  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: How to Move to Expand the Record in the Court of Appeals

    I can't read your motion from where I'm sitting, and I know nothing about the evidence you are alleging to be new or how you purport that it is part of a lower court record. This is yet another example of why you need to be working with a lawyer, rather than blasting your feet off with a shotgun then asking here why you are bleeding.

  3. #3
    Join Date
    Aug 2015

    Default Re: How to Move to Expand the Record in the Court of Appeals

    Quote Quoting Mr. Knowitall
    View Post
    This is yet another example of why you need to be working with a lawyer
    Not necessarily, but don't get me wrong. I think you, TaxingMatters and few others are amazingly knowledgeable, but elsewhere I'm frequently reading cases litigated by some lawyers with notorious showings of incompetence.

    I guess I should have restricted my post to the matter of jurisdiction (the last paragraph in my initial post). The procedural vacuum is recognized on page 10 of , which reads:

    Reconciliation of the provisions of MCR 2.612 with MCR 7.208 is problematic, however, as
    recognized in Dean & Longhofer, Michigan Court Rules Practice (4th ed), Author’s Commentary,
    2612.20, pp 487-488:
    The effect of a pending appeal on the power of the trial court to grant relief
    under MCR 2.612(C), however, creates problems. MCR 7.208(A) provides that,
    after a claim of appeal is filed or leave to appeal granted, the trial court may not set
    aside or amend the judgment or order appealed from except by order of the court of
    appeals, by stipulation of the parties, or otherwise provided by law. Yet the time for
    filing a motion seeking relief from the judgment continues to run while the case is
    pending on appeal. This leads to undesirable complications

    In that opinion, the COA came up with a solution for the very particular details of that case, but it falls short of being a procedural standard. Having looked at many appellate dockets that involve a "motion expanding the record", I get the impression that this jurisdictional catch-22 is addressed in a very discretionary manner.

    At the very least, I figure that the time for moving pursuant to MCR 2.612 (that is, in the trial court) would be somehow tolled while the appeal is in process. Since tolling applies elsewhere, I'm surprised that the idea tolling doesn't seem to be considered in this jurisdictional matter.

    Still, any insight or experience on this topic would be appreciated.

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