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Court Of Appeals Dismisses Appeal, Cautions Parties Against Procedural “Gamesmanship”

Posted on Wednesday, February 27, 2019

In this case involving no-fault insurance benefits, the Michigan Court of Appeals held that the stipulated order from which the plaintiff appealed did not qualify as a “final order” and, therefore, the Court did not have jurisdiction over the matter.

In Houghton v Allstate Property & Casualty Ins Co (Docket No. 341000), the Court of Appeals cautioned litigants against using “procedural gamesmanship” to get their appeals heard, like the plaintiff did in this case.

“We will not reward such attempts …,” the Court of Appeals said, dismissing the plaintiff’s claims.

Judges Anica Letica, Mark J. Cavanagh and Patrick M. Meter were on the panel that issued the unpublished opinion.

Car Accident Claims Dismissed

The plaintiff was injured in an automobile accident. She filed suit against the defendant in Wayne County Circuit Court for injuries to her jaw, dental injuries, rupture of a breast implant and in-patient prescription drug rehabilitation.

The trial court granted the defendant’s motion to summarily dismiss the jaw, dental and drug claims, but denied the motion as to the ruptured breast implant.

The plaintiff filed an application for interlocutory review, which the Court of Appeals denied (Houghton I). Thereafter, the parties stipulated to the dismissal of the plaintiff’s remaining breast implant claim.

The plaintiff then appealed, asserting an appeal of right from the trial court order that dismissed, without prejudice, her sole remaining claim for no-fault personal protection insurance (PIP) benefits. The defendant argued the Court of Appeals lacked jurisdiction over the matter as an appeal of right.

No “Final Order”

The Court of Appeals agreed with the defendant that the stipulated order did not qualify as a “final order” from which the plaintiff could claim an appeal of right.

In its decision, the Court of Appeals cited various appellate court rulings which stand for the proposition that parties “cannot create a final order by stipulating the dismissal of remaining claims without prejudice after a trial court enters an order denying a motion for summary disposition addressing only some of the parties’ claims.”

The Court of Appeals noted that while it had the discretion to treat the plaintiff’s claim of appeal as a granted application for leave to appeal, it would not do so in this case. “Plaintiff’s stipulation to dismiss the remaining claim ‘was clearly designed to circumvent trial procedures and court rules and obtain appellate review of one of the trial court’s initial determinations without precluding further substantive proceedings on the remaining claims,’” the Court wrote.

Such litigation tactics lead to “piecemeal appeals and an unnecessary waste of judicial resources” and are precisely what the Michigan Supreme Court tried to eliminate with the “final judgment” rule, the Court of Appeals said, citing MCR 7.202(6)(a)(i). That court rule says a “final judgment” or “final order” in a civil case is “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such an order entered after reversal of an earlier final judgment or order.”

According to the Court of Appeals, the plaintiff’s claim of appeal in this case was a “thinly veiled attempt to perform an end-around” Houghton I, the first matter in which an interlocutory appeal was denied.

“In other words, disliking this Court’s decision to deny her application for interlocutory review, plaintiff stipulated to dismissal of her remaining claim as a means of attempting to force this Court to afford her review before the final disposition of all her claims,” the Court of Appeals wrote. “We will not reward such attempts at procedural gamesmanship.”

In conclusion, the Court of Appeals emphasized that parties who are dissatisfied with the Court’s rulings should file a motion for reconsideration or seek leave to appeal in the Michigan Supreme Court. Here, the plaintiff “did neither,” the Court said. “Thus, we dismiss this matter for lack of jurisdiction.”

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