Rule 7.211 Motions in Court of Appeals

(A) Manner of Making Motion. A motion is made in the Court of Appeals by filing:

(1) 5 copies of a motion (one signed) stating briefly but distinctly the facts and the grounds on which it is based and the relief requested;

(2) the entry fee;

(3) for a motion to dismiss, to affirm, or for peremptory reversal, 5 copies of a supporting brief. A supporting brief may be filed with any other motion. A brief must conform to MCR 7.212(C) as nearly as possible, except that page references to a transcript are not required unless the transcript is relevant to the issue raised in the motion. A brief in conformance with MCR 7.212(C) is not required in support of a motion to affirm when the appellant argues that:

(a) the trial court’s findings of fact are clearly erroneous;

(b) the trial court erred in applying established law;

(c) the trial court abused its discretion; or

(d) a sentence which is within the sentencing guidelines is invalid.

Instead of a brief in support of a motion to affirm in such a circumstance, the movant may append those portions of the transcript that are pertinent to the issues raised in the motion; in that case, the motion must include a summary of the movant’s position;

(4) a motion for immediate consideration if the party desires a hearing on a date earlier than the applicable date set forth in subrules (B)(2)(a)-(e);

(5) proof that a copy of the motion, the motion for immediate consideration if one has been filed, and any other supporting papers were served on all other parties to the appeal.

(B) Answer.

(1) A party to an appeal may answer a motion by filing:

(a) 5 copies of an answer (one signed); and

(b) proof that a copy of the answer and any other opposing papers were served on all other parties to the appeal.

(2) Subject to subrule (3), the answer must be filed within

(a) 21 days after the motion is served on the other parties, for a motion to dismiss, to remand, or to affirm;

(b) 35 days after the motion is served on the appellee, if the motion is for peremptory reversal;

(c) 56 days after the motion is served on the defendant, for a motion to withdraw as the appointed appellate attorney;

(d) 14 days after the motion is served on the other parties, for a motion for reconsideration of an opinion or an order, to stay proceedings in the trial court, to strike a full or partial pleading on appeal, to file an amicus brief, to hold an appeal in abeyance, or to reinstate an appeal after dismissal under MCR 7.217(D);

(e) 7 days after the motion is served on the other parties, for all other motions.

If a motion for immediate consideration has been filed, all answers to all affected motions must be filed within 7 days if the motions for immediate consideration was served by mail, or within such time as the Court of Appeals directs. See subrule (C)(6).

(3) In its discretion, the Court of Appeals may dispose of the following motions before the answer period has expired: motion to extend time to order or file transcripts, to extend time to file a brief or other appellate pleading, to substitute one attorney for another, for oral argument when the right to oral argument was not otherwise preserved as described in MCR 7.212, or for an out-of-state attorney to appear and practice in Michigan.

(4) Five copies of an opposing brief may be filed. A brief must conform to MCR 7.212(D) as nearly as possible, except that page references to a transcript are not required unless the transcript is relevant to the issue raised in the motion.

(C) Special Motions. If the record on appeal has not been sent to the Court of Appeals, except as provided in subrule (C)(6), the party making a special motion shall request the clerk of the trial court or tribunal to send the record to the Court of Appeals. A copy of the request must be filed with the motion.

(1) Motion to Remand.

(a) Within the time provided for filing the appellant’s brief, the appellant may move to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal and show

(i) that the issue is one that is of record and that must be initially decided by the trial court; or

(ii) that development of a factual record is required for appellate consideration of the issue.

A motion under this subrule must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.

(b) A timely motion must be granted if it is accompanied by a certificate from the trial court that it will grant a motion for new trial.

(c) In a case tried without a jury, the appellant need not file a motion for remand or a motion for new trial to challenge the great weight of the evidence in order to preserve the issue for appeal.

(d) If a motion to remand is granted, further proceedings in the Court of Appeals are stayed until completion of the proceedings in the trial court pursuant to the remand, unless the Court of Appeals orders otherwise. Unless the Court of Appeals sets another time, the appellant’s brief must be filed within 21 days after the trial court’s decision or after the filing of the transcript of any hearing held, whichever is later.

(2) Motion to Dismiss. An appellee may file a motion to dismiss an appeal any time before it is placed on a session calendar on the ground that

(a) the appeal is not within the Court of Appeals jurisdiction;

(b) the appeal was not filed or pursued in conformity with the rules; or

(c) the appeal is moot.

(3) Motion to Affirm. After the appellant’s brief has been filed, an appellee may file a motion to affirm the order or judgment appealed from on the ground that

(a) it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission; or

(b) the questions sought to be reviewed were not timely or properly raised.

The decision to grant a motion to affirm must be unanimous. An order denying a motion to affirm may identify the judge or judges who would have granted it but for the unanimity requirement of this subrule.

(4) Motion for Peremptory Reversal. The appellant may file a motion for peremptory reversal on the ground that reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission. The decision to grant a motion for peremptory reversal must be unanimous. An order denying a motion for peremptory reversal may identify the judge or judges who would have granted it but for the unanimity requirement of this subrule.

(5) Motion to Withdraw. A court-appointed appellate attorney for an indigent appellant may file a motion to withdraw if the attorney determines, after a conscientious and thorough review of the trial court record, that the appeal is wholly frivolous.

(a) A motion to withdraw is made by filing:

(i) 5 copies of a motion to withdraw (one signed) which identifies any points the appellant seeks to assert and any other matters that the attorney has considered as a basis for appeal;

(ii) 5 copies of a brief conforming to MCR 7.212(C), which refers to anything in the record that might arguably support the appeal, contains relevant record references, and cites and deals with those authorities which appear to bear on the points in question;

(iii) proof that copies of the motion, brief in support, and notice that the motion may result in the conviction or trial court judgment being affirmed were served on the appellant by certified mail; and

(iv) proof that a copy of the motion only and not the brief was served the appellee.

(b) The motion to withdraw and supporting papers will be submitted to the court for decision on the first Tuesday

(i) 28 days after the appellant is served in appeals from orders of the family division of the circuit court terminating parental rights under the Juvenile Code, or

(ii) 56 days after the appellant is served in all other appeals.

The appellant may file with the court an answer and brief in which he or she may make any comments and raise any points that he or she chooses concerning the appeal and the attorney’s motion. The appellant must file proof that a copy of the answer was served on his or her attorney.

(c) If the court finds that the appeal is wholly frivolous, it may grant the motion and affirm the conviction or trial court judgment. If the court grants the motion to withdraw, the appellant’s attorney shall mail to the appellant a copy of the transcript within 14 days after the order affirming is certified and file proof of that service. If the court finds any legal point arguable on its merits, it will deny the motion and the court appointed attorney must file an appellant’s brief in support of the appeal.

(6) Motion for Immediate Consideration. A party may file a motion for immediate consideration to expedite hearing on another motion. The motion must state facts showing why immediate consideration is required. If a copy of the motion for immediate consideration and a copy of the motion of which immediate consideration is sought are personally served under MCR 2.107(C)(1) or (2), the motions may be submitted to the court immediately on filing. If mail service is used, motions may not be submitted until the first Tuesday 7 days after the date of service, unless the party served acknowledges receipt. The trial court or tribunal record need not be requested unless it is required as to the motion of which immediate consideration is sought.

(7) Confession of Error by Prosecutor. In a criminal case, if the prosecutor concurs in the relief requested by the defendant, the prosecutor shall file a confession of error so indicating, which may state reasons why concurrence in the relief requested is appropriate. The confession of error shall be submitted to one judge pursuant to MCR 7.211(E). If the judge approves the confession of error, the judge shall enter an order or opinion granting the relief. If the judge rejects the confession of error, the case shall be submitted for decision through the ordinary processes of the court, and the confession of error shall be submitted to the panel assigned to decide the case.

(8) Vexatious Proceedings. A party’s request for damages or other disciplinary action under MCR 7.216(C) must be contained in a motion filed under this rule. A request that is contained in any other pleading, including a brief filed under MCR 7.212, will not constitute a motion under this rule. A party may file a motion for damages or other disciplinary action under MCR 7.216(C) at any time within 21 days after the date of the order or opinion that disposes of the matter that is asserted to have been vexatious.

(9) Motion to Seal Court of Appeals File in Whole or in Part.

(a) Trial court files that have been sealed in whole or in part by a trial court order will remain sealed while in the possession of the Court of Appeals. Public requests to view such trial court files will be referred to the trial court.

(b) Materials that are subject to a protective order entered under MCR 2.302(C) may be submitted for inclusion in the Court of Appeals file in sealed form if they are accompanied by a copy of the protective order. A party objecting to such sealed submissions may file an appropriate motion in the Court of Appeals.

(c) Except as otherwise provided by statute or court rule, the procedure for sealing a Court of Appeals file is governed by MCR 8.119(I). Materials that are subject to a motion to seal a Court of Appeals file in whole or in part shall be held under seal pending the court’s disposition of the motion.

(d) Any party or interested person may file an answer in response to a motion to seal a Court of Appeals file within 7 days after the motion is served on the other parties, or within 7 days after the motion is filed in the Court of Appeals, whichever is later.

(e) An order granting a motion shall include a finding of good cause, as defined by MCR 8.119(I)(2), and a finding that there is no less restrictive means to adequately and effectively protect the specific interest asserted.

(f) An order granting or denying a motion to seal a Court of Appeals file in whole or in part may be challenged by any person at any time during the pendency of an appeal.

(D) Submission of Motions. Motions in the Court of Appeals are submitted on Tuesday of each week. There is no oral argument on motions, unless ordered by the court.

(E) Decision on Motions.

(1) Except as provided in subrule (E)(2), orders may be entered only on the concurrence of the majority of the judges to whom the motion has been assigned.

(2) The chief judge or another designated judge may, acting alone, enter an order disposing of an administrative motion. Administrative motions include, but are not limited to:

(a) a motion to consolidate;

(b) a motion to extend the time to file a transcript or brief;

(c) a motion to strike a nonconforming brief;

(d) a motion for oral argument in a case that has not yet been placed on a session calendar;

(e) a motion to adjourn the hearing date of an application, complaint, or motion;

(f) a motion to dismiss a criminal appeal on the grounds that the defendant has absconded;

(g) a motion to file an amicus curiae brief;

(h) a motion to allow an out-of-state attorney to appear and practice.