The Michigan Supreme Court Justices on an April 25 visit to Petoskey to hear a arguments in a case: left to right, Justice Joan L. Larsen, Justice David F. Viviano, Justice Brian K. Zahra, Chief Justice Stephen J. Markman, Justice Bridget Mary McCormack, Justice Richard H. Bernstein. Not shown, Justice Kurtis T. Wilder, who was appointed May 9.
PHOTO COURTESY OF MICHIGAN SUPREME COURT
by Cynthia Price
Legal News
Following is the Order issued by the Michigan Supreme Court, Stephen J. Markman, Chief Justice; Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder, Justices. (Editor’s Note: the indentation from the Order has not been retained; to see the original, visit http://courts.mi.gov/
Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/Adopted/
2016-32_2017-06-21_Amendt OfProbateAppeals.pdf)
June 21, 2017
ADM File No. 2016-32
Amendments of
Rules 5.801, 5.802, 7.102, 7.103,
7.108, 7.109, 7.204, 7.205, 7.208,
7.209, 7.210, 7.212, and 7.213 of the
Michigan Court Rules
On order of the Court, notice of the proposed changes and an opportunity for comment having been provided, and consideration having been given to the comments received, the following amendments of Rules 5.801, 5.802, 7.102, 7.103, 7.108, 7.109, 7.204, 7.205, 7.208, 7.209, 7.210, 7.212, and 7.213 of the Michigan Court Rules are adopted, effective immediately.
[The present language is amended as indicated below by underlining for new text and strikeover for text that has been deleted.]
Rule 5.801 Appeals to Other CourtsCourt of Appeals
(A) Right to Appeal of Right. An party or an interested person aggrieved by an final order of the probate court may appeal as a matter of right as provided by this rule.
(B) Orders Appealable to Court of Appeals. Orders appealable of right to the Court of Appeals are defined as and limited to the following:
(1) a final order, as defined in MCR 7.202(6)(a), affecting the rights or interests of a party to a civil action commenced in the probate court under MCR 5.101(C);
(2) [Unchanged.]
(a) appointing or removing a personal representative, conservator, trustee, fiduciary or trust protector as referred to defined in MCL 700.7103(n), or denying such an appointment or removal;
(b) [Unchanged.]
(c) determining the validity of a governing instrument as defined in MCL 700.1104(m);
(d) interpreting or construing a governing instrument as defined in MCL 700.1104(m);
(e) approving or denying a settlement relating to a governing instrument as defined in MCL 700.1104(m);
(f)-(ee) [Unchanged]
(ff) adoption assistance determinations pursuant to MCL 400.115k;
(3) a final order affecting the rights and interests of an adult or a minor in a guardianship proceeding under the Estates and Protected Individuals Code;
(4) a final order affecting the rights or interests of a person under the Mental Health Code;
(5) an order entered in a probate proceeding, other than a civil action commenced in probate court, that otherwise affects with finality the rights or interests of a party or an interested person in the subject matter; or
(36) other appeals as may be hereafter provided by statutelaw.
(BD) Appeal by LeaveInterlocutory Orders. All orders of the probate court not listed in subrule (A) are appealable to the Court of Appeals by leave of that court. An interlocutory order, such as an order regarding discovery; ruling on evidence; appointing a guardian ad litem; or suspending a fiduciary for failure to give a new bond, to file an inventory, or to render an account, may be appealed only to the circuit court and only by leave of that court. The circuit court shall pay particular attention to an application for leave to appeal an interlocutory order if the probate court has certified that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation.
Rule 5.802 Appellate Procedure; Stays Pending Appeal
(A)-(B) [Unchanged.]
(C) Stays Pending Appeals. An order removing or appointing a fiduciary; appointing a special personal representative or a special fiduciary; granting a new trial or rehearing; granting an allowance to the spouse or children of a decedent; granting permission to sue on a fiduciary’s bond; or suspending a fiduciary and appointing a special fiduciary, is not stayed pending appeal unless ordered by the court on motion for good cause.
Rule 7.102 Definitions
For purposes of this subchapter:
(1)-(8) [Unchanged.]
(9) “trial court” means the district, probate, or municipal court from which the “appeal” is taken.
Rule 7.103 Appellate Jurisdiction of the Circuit Court
(A) Appeal of Right. The circuit court has jurisdiction of an appeal of right filed by an aggrieved party from the following:
(1) [Unchanged.]
(3)-(4) [Renumbered (2)-(3) but otherwise unchanged.]
(B) [Unchanged.]
Rule 7.108 Stay of Proceedings; Bond; Review
(A)-(D) [Unchanged.]
Rule 7.109 Record on Appeal
(A) [Unchanged.]
(B) Transcript.
(1) Appellant’s Duties; Orders; Stipulations.
(a) [Unchanged]
(c)-(e) [Relettered (b)-(d) but otherwise unchanged]
(2)-(3) [Unchanged.]
(C)-(I) [Unchanged.]
Rule 7.204 Filing Appeal of Right; Appearance
(A)-(C) [Unchanged.]
(D) Form of Claim of Appeal.
(1)-(2) [Unchanged.]
(3) If the case involves
(a) a contest as to the custody of a minor child, or
(b) a case involving an adult or minor guardianship under the Estates and Protected Individuals Code or under the Mental Health Code or an involuntary mental health treatment case under the Mental Health Code, or
(c) a ruling that that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branch of state government is invalid,
that the fact must be stated in capital letters on the claim of appeal. In an appeal specified in subrule (D)(3)(bc), the Court of Appeals shall give expedited consideration to the appeal, and, if the state or an officer or agency of the state is not a party to the appeal, the Court of Appeals shall send copies of the claim of appeal and the judgment or order appealed from to the Attorney General.
(E)-(H) [Unchanged.]
Rule 7.205 Application for Leave to Appeal
(A) [Unchanged.]
(B) Manner of Filing. To apply for leave to appeal, the appellant shall file with the clerk:
(1)-(4) [Unchanged.]
(6)-(7) [Renumbered (5)-(6) but otherwise unchanged.]
(C)-(H) [Unchanged.]
Rule 7.208 Authority of Court or Tribunal Appealed From
(A)-(C) [Unchanged.]
(D) Probate Actions. The probate court retains continuing jurisdiction to decide other matters pertaining to the proceeding from which an appeal was filed.
(D)-(I) [Relettered (E)-(J) but otherwise unchanged.]
Rule 7.209 Bond; Stay of Proceedings
(A) Effect of Appeal; Prerequisites.
(1) Except for an automatic stay pursuant to MCR 2.614 or MCL 600.867, or except as otherwise provided under this rule, an appeal does not stay the effect or enforceability of a judgment or order of a trial court unless the trial court or the Court of Appeals otherwise orders. An automatic stay under MCR 2.614(D) operates to stay any and all proceedings in a cause in which a party has appealed a trial court’s denial of the party’s claim of governmental immunity.
(2)-(3) [Unchanged.]
(B) Responsibility for Setting Amount of Bond in Trial Court.
(1) Civil Actions and Probate Proceedings. Unless determined by law, or as otherwise provided by this rule, the dollar amount of a stay or appeal bond in a civil action or probate proceeding must be set by the trial court in an amount adequate to protect the opposite party.
(2) [Unchanged.]
(C)-(E) [Unchanged.]
(F) Conditions of Stay Bond.
(1) Civil Actions and Probate Proceedings. In a bond filed for stay pending appeal in a civil action or probate proceeding, the appellant shall promise in writing:
(a)-(e) [Unchanged.]
(2) [Unchanged.]
(G) Sureties and Filing of Bond; Service of Bond; Objections; Stay Orders. Except as otherwise specifically provided in this rule, MCR 3.604 applies. A bond must be filed with the clerk of the court that entered the order or judgment to be stayed.
(1) Civil Actions and Probate Proceedings.
(a)-(g) [Unchanged.]
(2) [Unchanged.]
(H)-(I) [Unchanged.]
Rule 7.210 Record on Appeal
(A) Content of Record. Appeals to the Court of Appeals are heard on the original record.
(1) Appeal From Court. In an appeal from a lower court, the record consists of the original papers filed in that court or a certified copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced. In an appeal from probate court in an estate or trust proceeding, an adult or minor guardianship proceeding under the Estates and Protected Individuals Code, or a proceeding under the Mental Health code, only the order appealed from and those petitions, opinions, and other documents pertaining to it need be included.
(2)-(4) [Unchanged.]
(B) Transcript.
(1) Appellant’s Duties; Orders; Stipulations.
(a) [Unchanged.]
(b) In an appeal from probate court in an estate or trust proceeding, an adult or minor guardianship proceeding under the Estates and Protected Individuals Code, or a proceeding under the Mental Health code, only that portion of the transcript concerning the order appealed from need be filed. The appellee may file additional portions of the transcript.
(c)-(e) [Unchanged.]
(2)-(3) [Unchanged.]
(C)-(I) [Unchanged.]
Rule 7.212 Briefs
(A) Time for Filing and Service
(1) Appellant’s Brief.
(a) Filing. The appellant shall file 5 typewritten, xerographic, or printed copies of a brief with the Court of Appeals within
(i) 28 days after the claim of appeal is filed, the order granting leave is certified, the transcript is filed with the trial court, or a settled statement of facts and certifying order is filed with the trial court or tribunal, whichever is later, in a child custody case, adult or minor guardianship case under the Estates and Protected Individuals Code or under the Mental Health Code, involuntary mental health treatment cases under the Mental Health Code, or an interlocutory criminal appeal. This time may be extended only by the Court of Appeals on motion; or
(ii)-(iii) [Unchanged.]
(b) [Unchanged.]
(2) Appellee’s Brief.
(a) Filing. The appellee shall file 5 typewritten, xerographic, or printed copies of a brief with the Court of Appeals within
(i) 21 days after the appellant’s brief is served on the appellee, in an interlocutory criminal appeal, adult or minor guardianship case under the Estates and Protected Individuals Code or under the Mental Health Code, involuntary mental health treatment cases under the Mental Health Code, or a child custody case. This time may be extended only by the Court of Appeals on motion;
(ii) [Unchanged.]
(b) [Unchanged.]
(3)-(5) [Unchanged.]
(B)-(I) [Unchanged.]
Rule 7.213 Calendar Cases
(A)-(B) [Unchanged.]
(C) Priority on Calendar. The priority of cases on the session calendar is in accordance with the initial filing dates of the cases, except that precedence shall be given to:
(1) [Unchanged.]
(2) child custody cases, guardianship cases under the Estates and Protected Individuals Code and under the Mental Health Code, and involuntary mental health treatment cases under the Mental Health Code;
(3)-(7) [Unchanged.]
(D)-(E) [Unchanged.]
Staff Comment: These amendments conform to recent statutory changes that require all appeals from probate court to be heard in the Court of Appeals, instead of the bifurcated system that previously required some probate appeals to be heard in the Court of Appeals and some to be heard in the local circuit court. The amendments also establish priority status for appeals in guardianship and involuntary mental health treatment cases, similar to child custody cases.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.
(Order was signed and certified by Larry S. Royster, Clerk of the Michigan Supreme Court, on June 21, 2017.)
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
