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Maverick
Maverick, Lawyer
Category: Family Law
Satisfied Customers: 5767
Experience:  20 years of professional experience
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I have a hearing on Friday judge to hear

Customer Question

Hello,
I have a hearing on Friday for the judge to hear opposing counsel's Motion to Dismiss. I filed an appeal of an order issued by a District Judge in the State of MI. I aso filed a Motion in Opposition to the MTD and a Brief or Memorandum in Support of the Motion in Opposition to the MTD.
The MTD is actually procedurally defective, as it was filed 5 days late according to the rules of court. Also, according to the court rules, my appeal is proper as a "matter of right" since it was issued pursuant to a formal hearing. Opposing counsel bases his MTD on his allegation that I should have filed my appeal on a default judgment (DJ) that was issued prior to the order I appealed.
I argued in my Motion & Memorandum that the DJ is not a final order a) because it requires a subsequent show cause hearing to establish the final rights and obligations of the parties, and b) because it was issue ex parte while I was stranded in another state due to an ice storm that closed the airport and precluded my travel to the DJ hearing, c) the DJ therefore does not meet constitutional muster under the Due Process clauses of the state and federal constituions, and d) even if the DJ were considered a final order the order I did appeal is an appealale order becase it issued from a formal hearing.
Why is the judge wasting time hearing a procedurally defective motion when the appeal is clearly properly filed as a "matter of right"? And how can an MTD be based on the argument that an ex parte order, that itself is under challenge at the trial court level, is somehow a final order under Michigan law?
Thanks,
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
Sorry, I meant to say, I appealed an order that was issued after a formal hearing. And, I dont know whether "appealable" is an actual word n all jurisdictions. But, I have heard it used . . . .
Expert:  Maverick replied 1 year ago.
Welcome! My name is Maverick. I very much enjoy what I do and I hope that you will benefit from this information.
Need a clarification please:
Is the MTD filed in the appeal court to dismiss your appeal?
What is the exact nature of the order that you based or filed your appeal on?
Customer: replied 1 year ago.
Sorry again, this is not a family law case. It is regarding a property, civil infraction. The city is the Plaintiff at the trial level, and I (property owner) am the appellant at the appellate level. I also filed a Motion to Stay and a bond at the trial court, which automatically stays the trial court proceedings under MI law. The rules say the district judge "shall" issue an order to stay under such circumstances, and I have filed a draft order for his to sign, but he hasn't.The order I appealed orders me to repair "blight", which there actually is none, and to repair the roof, which has not been done due to lack of funds. It also allows the city to do an "internal" inspection and to repair the roof by the city if I do not meet the order deadline. They have no such authority, and I refuse to let them enter my property.
Customer: replied 1 year ago.
Yes, the MTD was filed ostensibly to dismiss the appeal.
Customer: replied 1 year ago.
By the way, civil infractions have their own section of the MI rules, and arguably these rules trump the rules on civil appeals in general, which are in a separate section of the MI court rules.
Customer: replied 1 year ago.
BTY -- opposing counsel did not even mention these rules pertaining to civil infractions in its motion, also city did not request a waiver on the procedural defect. of course, i explicitly did not consent to waive the procedural defect and i premptorially objected to the court waiving the defect sui sponte or suo moto.
Expert:  Maverick replied 1 year ago.
The rules say the district judge "shall" issue an order to stay under such circumstances, and I have filed a draft order for his to sign, but he hasn't.
1. I would have said that you may want to include these trial court filings in a formal supplemental clerk's record on appeal and file a motion to stay with the appeal court; but look what the law states:
Rule 7.209 Bond; Stay of Proceedings
(A) Effect of Appeal; Prerequisites.
(1) Except for an automatic stay pursuant to MCR 2.614, 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) A motion for bond or for a stay pending appeal may not be filed in the Court of Appeals unless such a motion was decided by the trial court.
(3) A motion for bond or a stay pending appeal filed in the Court of Appeals
must include a copy of the trial court's opinion and order, and a copy of the transcript of the hearing on the motion in the trial court.
THE LAW ABOVE EXPLAINS WHY THE TRIAL JUDGE IS NOT RULING ON IT. AMAZINGLY, I HAVE BEEN PRACTICING ALMOST 20 YEARS AND HAVE NOT FOUND A PRACTICAL SOLUTION FOR THIS. THE ONLY THING THAT CAN BE DONE IS TO FILE A MANDAMUS ACTION IN THE APPEALS COURT. BUT EVEN THE APPEAL COURT CANNOT FORCE THE JUDGE AS TO RULE WITHIN A CERTAIN PERIOD OF TIME. IT CAN ONLY TELL THE TRIAL COURT THAT IT MUST RULE. THE LAW NEEDS TO BE CHANGED SO THAT IF THE TRIAL COURT FAILS TO RULE OR DENIES YOUR STAY MOTION, YOU CAN SEEK RELIEF AT THE APPELLATE LEVEL. THIS IS THE LAW IN OTHER STATES.
Why is the judge wasting time hearing a proceduralLy defective motion when the appeal is clearly properly filed as a "matter of right"?
2. The court system is not what you want to believe it to be my friend. Politics has taken over even our last corner of protection "for the people".
Did you file a motion to set aside the default judgment?
And how can an MTD be based on the argument that an ex parte order, that itself is under challenge at the trial court level, is somehow a final order under Michigan law?
Customer: replied 1 year ago.
Of course -- Copies of the Motion to Stay, Appeal Bond (paid to the DIst Ct. cashier), Draft Order to Stay, Motion to Set Aside the DJ, Copy of the Transcript of the Hearing pertaining to the Challenged Order, and the Claim of Appeal were all included as exhibits to the Memorandum.Apparently, you are a MI licensed attorney, so as you know, there is an MC form for the motion to set aside a DJ. So, I completed this and filed it -- along with a copy of the press release from my airport saying the airport was shut down on the day of the DJ due to an ice storm and all planes were grounded. In retrospect, I probably should have included an affidavit that I was stranded by the ice storm, instead of relying on the court to take judicial notice that I was unable to attend.It sounds like if the court grants the city's MTD, I need to make an offer of proof for the record and just appeal to the Ct of Appeals. Agreed?
Customer: replied 1 year ago.
On the motion for stay, I should mention it was unopposed. Which is where the "shall" language comes in for the trial court.
Expert:  Maverick replied 1 year ago.
On the motion for stay, I should mention it was unopposed. Which is where the "shall" language comes in for the trial court.
Yes, but look at the rule the trial court actually has to rule before you can apply to the appeals court to stay the case. So, this stay issue is pretty much dead in my mind.
Can you re-phrase any remaining questions you have please, as I am not following them. I will be back tomorrow to help you. Shutting down for the evening. Thanks.
Q1.
Q2.
like this ...
Customer: replied 1 year ago.
I am just going by the ICLE Michigan Appellate Manual as follows:A stay may be obtained from the trial court in one of three ways: (1) stipulation of the parties, (2)
posting a bond, or (3) motion. The purpose of a stay bond is to indemnify the appellee against
further trouble in pursuing and enforcing his or her rights at the conclusion of the appeal. See
Federal Nat’l Mortgage Ass’n v Wingate, 404 Mich 661, 682, 273 NW2d 456 (1979). See SCAO
form MC 56 for a bond, and forms 2.1–2.3.
For monetary judgments, posting a bond in the trial court of 1 1/4 times the amount of the
judgment, assessed costs, interest, and fees will continue the stay of execution until the trial
court resolves any objections to the bond and enters an order staying enforcement. MCR
7.108(B)(2)(a); In re Contempt of Calcutt, 184 Mich App 749, 756, 458 NW2d 919 (1990). In
posting the bond, the appellant must file a proposed stay order with the bond and serve the
bond and proposed stay order on all parties. MCR 7.108(B)(4). The statute authorizing review
may impose certain conditions on granting a stay. Ensure that the proposed stay order complies
with it.Q1: I have filed my appeal bond, and the trial court has not signed my draft order. According to the above, the payment of the bond stays the execution of the challenged order. Are you saying this is not true?Q2: I received a notice of interest accrued on the fines I bonded. Are these interest charges also stayed on appeal. If so, can I hold the City in contempt for assessing fines while the matter is stayed on appeal? (Or at least allege this is in good faith?)Q3: It sounds like you are saying these circuit courts are corrupt, and I should just take my lumps there and file my appeal witht he MI Ct of Appeals hoping they will actually follow the law. Is that what you are advising?Q4: Bot***** *****ne: What should I expect to happen at the MTD hearing?Q5: Given your answer to Q4, what should be my response in order to protect my property rights in best way possible and to keep the City's cotton-pickin hands off of my property?
Customer: replied 1 year ago.
Are you there?
Expert:  Maverick replied 1 year ago.
I was rushed for time yesterday evening, however, I wanted to clarify that I am not an MI lawyer...
Q1: I have filed my appeal bond, and the trial court has not signed my draft order. According to the above, the payment of the bond stays the execution of the challenged order. Are you saying this is not true?
No, based on this statute you are correct that posting the bond stays the execution. It appears that MI allows does not require BOTH a bond and a granted motion.
Q2: I received a notice of interest accrued on the fines I bonded. Are these interest charges also stayed on appeal. If so, can I hold the City in contempt for assessing fines while the matter is stayed on appeal? (Or at least allege this is in good faith?)
I am not finding any MI case law for free on the web that speaks to this issue. I did find something out of Rhode Island that says that the accrual of post judgment interest is NOT stayed despite the bond. You may have to go to a local county law library and do a Westlaw search for a MI case.
Q3: It sounds like you are saying these circuit courts are corrupt, and I should just take my lumps there and file my appeal witht he MI Ct of Appeals hoping they will actually follow the law. Is that what you are advising?
This factor is there, but it seems your situation is not as bad as it first appeared since the stay is in place whether the trial judge acts or doesn't. Appeals are no picnic as the appeals courts look for minor technicalities to throw out cases. The upshot is that you may find yourself fighting for a long time to obtain the justice you seek.
Q4: Bot***** *****ne: What should I expect to happen at the MTD hearing?
There is still some confusion here. It sounds like you are saying that the trial judge has set a hearing on a motion filed by the other side to dismiss your appeal. My thought is that this makes no sense as only the appeals court can dismiss an appeal you have filed.
Q5: Given your answer to Q4, what should be my response in order to protect my property rights in best way possible and to keep the City's cotton-pickin hands off of my property?
To me it sounds like you need to appeal the trial court's denial of your motion to set aside the default or its denial of a motion for rehearing on the same. I can't tell if you have done this or not. Alternatively, if a final judgment was issued, you would want to appeal that also. So you would appeal every interlocutory erroneous order if a final judgment has issued. See case at link below:
http://law.justia.com/cases/michigan/supreme-court/1968/380-mich-105-5.html
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Customer: replied 1 year ago.
Q1: Actually, you did not really answer my question: As you know, there is a distinction between staying the execution of the Order and staying the entire trial court proceedings. The latter is what I was asking about. How do I get this judge to sign this order, when the Motion to Stay was unopposed and the Rule says he "shall" issue an Order to stay the proceeings under such circumstances? He just plain hasn't done it, and I believe he is in breach of the applicable rules of court. On the other hand, someone just scratched the May hearing off of the trial court calendar, so apparently the judge understands his order is stayed. How should I proceed to address his breach of the rules? (i.e., Hard to believe the appellate judge would hold the trial court judge in contempt, so procedurally, how do I do that?)Q2: No -- don't think you answered this one either: The fines were included in the trial court's DJ. On Friday, the appellate judge said the DJ was not a "final order", so in terms of the appeal, I would apparently need to file a petition for leave to appeal the DJ as well as the order I did challenge. On the other hand, the stay bond applies to the DJ fines, which are incorporated by reference into the order I challenged on appeal. So, arguably, the fines are stayed also based just on the appeal bond, but apparently, you are saying there is no case law on point. So, what is my argument to oppose the interest charges? Would I be able to allege the City can be held in contempt by the appellate court if they continue to assess interest on the stayed fines?Q3: No -- While it is true that I believe the district court erred, and he should never have issued the DJ in the first place, the other point is I need some time to address one of the infractions (roof repairs), which requires a lot of money, and my funds are already exhausted from the prior tenant not paying rent and basically destroying my house. So, the fact that appeals take considerable time to work their way through the courts is a good thing from my perspective -- I need time to recover financially from this "tenant from hell" situation.Q4: No -- The Appellee/Plaintiff filed an MTD to dismiss my appeal with the APPELLATE court. In this case, the county circuit court is the first appellate court, then one can appeal to the MI Court of Appeals, then one can appeal to the MI Supreme Court. Then, if you have an interesting Constitutional question -- I guess to the US Supreme Court.Q5: No -- So, I (appellant) won the MTD challenge filed by the appellee during yesterday's hearing. The appellate judge said the DJ was not a "final order", which of course, it isn't. But the judge described my appeal as "narrow" -- meaning I may need to seek leave to appeal other issues. So, next question is whether that can be done within the same pending appeal? (i.e., In Michigan the rules provide for a claim of appeal, for appeals as of right, and a petition for leave to appeal for non-final order appeals. If I understand the applicable rules, I believe I can now file a petition for leave to appeal other issues, in this case the civil infraction fines in the DJ and the DJ itself, within my current case, but I am asking you about this.) Is that something I can do within the current appeal, or do I need to file a petition for leave to appeal as a separate appeal case? If the latter, can I later consolidate the two?Also, I am supposed to write the Order for the Court since I was the prevailing party. And that raises another question: My Motion stated that the Appellee's Motion was meritless -- which it actually was, as the judge dismissed it without my even having to state my arguments orally - and in my motion I assigned costs to the Plaintiff/Appellee, including my travel costs to travel to the hearing from out-of-state. I tried to ask the judge whether the Order should recite that the Plaintiff pays my costs, but he said I could not ask any more questions because he had a full docket. So, should I include the costs language in my draft Order? Or would this be bad form and only serve to tick off the judge (whom I must appear before again during September)? Obviously, he can just strike that language from the draft Order, if he does not agree that I should get my travel costs, but again I do not want him to see me as trying to draft an Order that is not consistent with his ruling. On the other hand, my brief carried the day, and I did not really even need to be present during oral argument, as the judge just told the City attorney basically the same things I explained in my brief. So, that's the question, should I:a. not include the issue of Appellee paying costs in my order
b. include the issue of the Appellee paying costs, but not specifically mention my travel costs, or
c. include the isse of Appellee paying costs, and include order language that the Appellee pay for my travel cost for the appearance.Okay? Thanks ...
Customer: replied 1 year ago.
I think we can move the time frame out on Q4, as the appellate judge already ruled in my favor by denying the Appellee's MTD, so this would be the same question as pertains to the oral arguments hearing in September -- what should I expect to happen?. Also, the judge's remarks opened up some follow-up questions as discussed under Q5
Customer: replied 1 year ago.
My thought on getting the trial court judge to sign the Order to Stay would be to just email his clerk/secretary and ask her whether he intends to issue that order. I can just re-state the rule in my email, and indicate I need to know for purposes of the scope of my appeal. That is, if he intends not to sign, I may need to include that issue in my appeal proceedings. Maybe that will spur some action. Not sure how much down side there is of that approach, since he already seems pre-disposed to be hostile to landlords generally.
Expert:  Maverick replied 1 year ago.
I have given this my best efforts. I will opt out and let another expert try to assist you. Your deposit is in tact still and you need not do anything on your part except to wait for another expert to pick this up. Please do not respond to this message as it will lock the question back to me.