United States: Can There Be More Than One "Final Order" For Purposes Of Appeal?

Last Updated: May 10 2019
Article by Phillip J. DeRosier

As a general rule, the Michigan Court of Appeals' jurisdiction is limited to appeals of right from a "final judgment or final order." MCR 7.203(A)(1). In most cases, that will be the "the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties." MCR 7.202(6)(a)(i). But the court rules also provide for other types of "final" orders, including:

  • "[I]n a domestic relations action, a postjudgment order affecting the custody of a minor," MCR 7.202(6)(a)(iii);
  • "[A] postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law or court rule," MCR 7.202(6)(a)(iv); and
  • "[A]n order denying governmental immunity to a governmental party, including a governmental agency, official, or employee," MCR 7.202(6)(a)(v).

The possibility of more than one "final" order in a case can be a trap for the unwary, because MCR 7.203(A)(1) provides that "[a]n appeal from an order described in MCR 7.202(6)(a)(iii)-(v) is limited to the portion of the order with respect to which there is an appeal of right." That serves as an important limitation on the general rule that "[w]here a party has claimed an appeal from a final order, the party is free to raise on appeal issues related to other orders in the case." Bonner v Chicago Title Insurance Co, 194 Mich App 462, 472; 487 N W2d 807 (1992).

A recent decision from the Court of Appeals illustrates the consequences of failing to appreciate the need to file separate appeals from different "final" orders in the same case. In Davis v Wayne County Clerk, unpublished opinion per curiam of the Court of Appeals, issued September 11, 2018; 2018 WL 4339583 (Docket No. 339200), the trial court entered orders in October 2016 imposing sanctions against the plaintiffs. When the plaintiffs failed to pay, the trial court conducted additional proceedings resulting in the entry of a judgment against the plaintiffs on June 21, 2017. The plaintiffs filed a timely appeal as of right from the June 21, 2017 judgment.

On appeal, the plaintiffs raised several issues concerning the award of sanctions, including the trial court's determination that their complaint was frivolous. The Court of Appeals, however, held that those arguments were not properly before it because they arose from the trial court's October 2016 orders, which the plaintiffs had previously appealed, but the appeal was dismissed for failure to pay the necessary entry fees. The Court of Appeals held that although it had jurisdiction "with respect to any issues related to the June 21, 2017 judgment," id. at *2, it could not consider any arguments concerning the October 2016 orders. The Court explained that the plaintiffs had not properly perfected an appeal from those orders, and that MCR 7.203(A)(1) precluded the Court from reviewing anything other than the June 21, 2017 judgment:

Here, appellants are attempting to use the appeal of the June 21, 2017 judgment as a means of challenging the October 2016 orders. Those October 2016 orders were also final orders inasmuch as they were also postjudgment orders granting attorney fees and costs, including setting the amount of the awards. By arguing that the trial court erred in determining that the complaint was frivolous, appellants are in effect challenging the substance of the October 2016 orders. "When a final order is entered, a claim of appeal from that order must be timely filed. A party cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order." Surman v Surman, 277 Mich App 287, 294; 745 NW2d 802 (2007). In an appeal from the subsequent final order, issues relating to the earlier order are not properly before this Court. Id. [Id. at *1 (some citations omitted).]

Davis is not the first time a party has filed a timely appeal from a "final" order, only to learn that its appeal did not extend to earlier orders because those too were "final." For example, in Tacco Falcon Point, Inc v Clapper, unpublished opinion per curiam of the Court of Appeals, issued Oct 23, 2008; 2008 WL 4684088 (Docket No. 273635), the defendant filed a timely appeal from the trial court's order imposing prevailing party costs in favor of the plaintiff under MCR 2.625. In challenging the award of costs, however, the sole basis for the defendant's argument was that the trial court erred in granting the plaintiff's motion for summary disposition. Id. at *1. The Court of Appeals held that it did not have jurisdiction to consider that argument because the defendant had not appealed from the summary disposition order itself:

[B]ecause [the defendant's] appeal is from a postjudgment order awarding costs under MCR 2.625, see MCR 7.202(6)(iv), and because the scope of such an appeal is limited to the portion of the order with respect to which there is an appeal of right, MCR 7.203(A)(1), [the defendant] may not attack the underlying summary disposition order as part of this appeal." [Id.]

Similarly, in Jenkins v James F Altman & Nativity Ctr, Inc, unpublished opinion per curiam of the Court of Appeals, issued May 31, 2005; 2005 WL 1278478 (Docket No. 256144), the Court of Appeals held that the plaintiffs could not challenge the trial court's order granting summary disposition to the defendant because although the plaintiffs timely appealed from the trial court's postjudgment order awarding attorney fees and costs, the Court's jurisdiction was limited to that order and did not extend to the earlier summary disposition decision. Id. at *3.

Note that these cases all happened to involve situations in which a failure to appeal the first of two final orders prevented the Court of Appeals from entertaining an appeal from the earlier order. The same problem arises, however, if a party timely appeals the first order, but not the second one. In B&S Telcom, Inc v Michigan Bell Tel Co, unpublished opinion per curiam of the Court of Appeals, issued April 16, 2013; 2013 WL 1632006 (Docket No. 304030), the plaintiff appealed the trial court's order granting summary disposition to the defendant. On appeal, the plaintiff also sought to challenge the trial court's subsequent order awarding the defendant attorney fees and costs as sanctions. Id. at *5. The problem is that the plaintiff never filed a separate appeal from the sanctions order. As a result, the Court of Appeals' jurisdiction was limited to review of the summary disposition order:

[P]laintiff asserts that the trial court erred in awarding defendant attorney fees and costs. However, plaintiff only appealed the trial court order granting summary disposition, and did not appeal the subsequent order awarding sanctions. . . . [B]oth orders are final orders; by failing to appeal from the order awarding costs and fees, plaintiff failed to invoke this Court's jurisdiction with respect to that order and we decline to address this aspect of plaintiff's argument. [Id.]

The lesson of these cases, and others like them, is that it is critical to carefully evaluate the issues to be raised on appeal and determine whether the existence of multiple "final" orders may require the filing of more than one claim of appeal.

*A version of this article was previously published in the Michigan Defense Quarterly, Vol. 35, No. 3 (2019).

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