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Lower court's register of actions vexes the Court of Appeals

Posted on Monday, May 14, 2018

Appellate attorneys frequently wrestle with the lower courts register of actions. Sometimes it answers your questions, sometimes it raises more. In a published opinion, Bellevue Ventures, Inc. v. Morang-Kelly Investment, Inc. (Docket 309743), the Michigan Court of Appeals remanded a case to the lower court for an evidentiary hearing because of deficiencies and irregularities in the record and register of actions. In April 2010 the plaintiff filed a complaint alleging breach of contract and unjust enrichment. The plaintiff-appellee, in the lower court, sought to strike the defendant-appellants counter complaint, amended answers, and amended affirmative defenses because all of them failed to appear on the register of actions and in the physical case file. The defendant-appellant, at that time, presented all the documents, which were time stamped by the Wayne County Clerk’s office. Defendant proved that the third party summons had been sent by the clerk. However, the lower court struck the pleadings due to “defendant’s failure to ensure that they had been filed with the clerk pursuant to MCR 2.107(G).” The plaintiff prevailed and was awarded a substantial sum. On appeal, the defendant-appellant claimed the lower court erred by, “striking defendant’s counter-complaint, amended answers and amended affirmative defenses,” and that the court erred by "proceeding with a bench trial rather than a jury trial.” The Court of Appeals found that “proof of filing with the clerk and not proof of filing by the clerk is sufficient to establish compliance with MCR 2.107(G).” In other words, you can give your pleadings to the clerks, but you cannot, and do not have to ensure what they do with them. Lastly, the defendant-appellant argued that the trial court erred by “…proceeding with a bench trial rather than a jury trial.” The Court of Appeals first found, “…the record insufficient to determine this issue.” However noting, that the bench trial was objected to by the defendant, who “… asserted that the plaintiff had filed a jury demand on which defendant had relied.” While it is reflected that the plaintiff paid a jury fee and filed a jury demand “no jury demand appears in the lower court record.” The Court of Appeals vented its frustration with the deficiencies and irregularities in the record and the register of actions. Given the mess the clerk’s office made, the Court of Appeals could not make a ruling and remanded the issue to the trial court for an evidentiary hearing. “Then, and only then, can a final determination be made as whether or not defendant was entitled to a jury trial.”

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