Order Michigan Supreme Court
Lansing, Michigan
February 1, 2008 Clifford W. Taylor,
Chief Justice
133294 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
RICK BEAVERS, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 133294
COA: 269007
Wayne CC: 03-309389-NO
BARTON MALOW COMPANY, JOMAR
BUILDING COMPANY, INC., SPILLIS
CARDELLA, DMJM, a/k/a DMJA, INC.,
and ROBERT SMITH,
Defendants-Appellees.
_________________________________________/
On December 5, 2007, the Court heard oral argument on the application for leave
to appeal the January 18, 2007 judgment of the Court of Appeals. On order of the Court,
the application is again considered. MCR 7.302(G)(1). In lieu of granting leave to
appeal, we REVERSE the judgment of the Court of Appeals, and we REMAND this case
to that court for it to exercise its discretion as to whether to hear the appeal. The Court of
Appeals erred in dismissing the appeal on the basis of MCR 7.205(F)(3) because, in
doing so, it ignored Riza v Niagara Machine & Tool Works, Inc, 411 Mich 915 (1980),
and People v Kincade (On Remand), 206 Mich App 477, 483 (1994). This Court plans to
open an administrative file to explore whether to amend MCR 7.205(F)(3), in recognition
of the uncertainty present in cases like this one.
CORRIGAN, J., dissents and states as follows:
I respectfully dissent because tolling is not appropriate in this case under Riza v
Niagara Machine & Tool Works, Inc, 411 Mich 915 (1981), or People v Kincade (On
Remand), 206 Mich App 477 (1994). Riza, a one-paragraph peremptory order of this
Court, stated that the 18-month period for delayed appeal provided in former GCR 1963,
806.2 was tolled while the plaintiff’s claim of appeal was pending. Riza, supra at 915.
We offered no legal analysis and no description of the facts in that case. The Court of
Appeals opinion in Kincade in turn cited Riza in the context of a criminal defendant’s
complex series of applications to the Court of Appeals. The defendant initially filed a
2
claim of right and petition for superintending control in the Court of Appeals, seeking the
appointment of new counsel to appeal a circuit court order denying his postconviction
motion for a new trial. Kincade, supra at 480. The Court of Appeals dismissed both the
claim of right and the petition. Id. This Court ultimately directed the Court of Appeals to
consider as on leave granted the substantive questions presented in the defendant’s
purported claim of right, which included whether he was constitutionally entitled to
appointment of counsel and an appeal as of right under the circumstances. 439 Mich
1022 (1992); Kincade, supra at 481. The Court of Appeals concluded that, because the
defendant sought to appeal an order denying a motion for relief from judgment, he could
only seek leave to appeal and any right to counsel was governed by MCR 6.509(B).
Kincade, supra at 483. The panel relied on Riza to conclude that, if the attorney
previously appointed to pursue the defendant’s postconviction motion concluded that an
application for leave was warranted, she could still file such an application because the
period for late appeal was tolled “during the time the various appellate proceedings
connected with the order denying relief from judgment ha[d] been pending in [the Court
of Appeals] or the Supreme Court.” Id. at 483. The cases cited in the order offer no
authority to establish that the period for late appeal was tolled here. MCR 7.205(F)(1)
explicitly prohibits tolling under the circumstances of this case. MCR 7.205(F)(1)
permits a party to apply for late appeal “[w]hen an appeal of right or an application for
leave was not timely filed.” (Emphasis added.) Here, plaintiff did file a timely claim of
appeal and his claim was dismissed because, through his own negligence, he failed to
comply with the Court of Appeals filing requirements. Accordingly, the Court of
Appeals appropriately declined to give plaintiff a second bite at the apple. I would also
deny leave. I support the Court’s intention to open an administrative file, however, to
address whether and when tolling of the period for late appeal is appropriate.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 1, 2008 _________________________________________
s0129 Clerk