Tips for Filing Interlocutory Appeals in the Michigan Court of Appeals

Most appeals in the Michigan Court of Appeals are appeals as of right after the entry of a final judgment or order.  But occasionally, a party may wish to challenge an interlocutory order – such as a discovery order, an denying summary disposition, or an order regarding a pretrial motion in limine.  With limited exceptions (such as an order denying governmental immunity), such orders are appealable only by leave of the Court.

MCR 7.205 governs applications for leave to appeal.  To be timely, an application for leave to appeal must be filed within 21 days after entry of the order being appealed, or within 21 days after the entry of an order denying a timely motion for reconsideration or other relief from the order being appealed.  MCR 7.205(A)(1), (2).  Depending on the circumstances, such as an impending trial, it may not be advisable to wait until the last day to file the application.  When time truly is of the essence, the application should be filed as soon as possible.  If action is required within 56 days, the application should be designated an “emergency.” See MCR 7.205(F)(1).  A motion for immediate consideration should be filed if the order being appealed will have consequences within 21 days of the filing of the application.  MCR 7.205(F)(2).

It is important to remember that unlike a claim of appeal, an application for leave to appeal is a full appeal brief on the merits.  This means that it must comply with the rules applicable to an appellant’s brief (see MCR 7.212(C)), and should explain as concisely as possible why leave to appeal should be granted. 

MCR 7.205 also requires an application for leave to appeal from an interlocutory order to set forth “facts showing how the appellant would suffer substantial harm by awaiting final judgment before taking an appeal.”  See MCR 7.205(B)(1).  In other words, why should the appeal be heard immediately as opposed to waiting until the end of the case?  Some orders, such as orders involving preliminary injunctions or those denying discovery or the admission of critical evidence, lend themselves more readily to an argument that an immediate appeal is necessary.  But interlocutory appeals are certainly not limited to such orders.  In the appropriate case, it might make sense to seek leave to appeal from an order denying summary disposition, such as if the motion raised a statute of limitations issue or some other legal issue that would dispose of the case in its entirety and avoid the need for discovery and a time-consuming and expensive trial.

In seeking leave to appeal from an interlocutory order, parties should also keep in mind that the Court of Appeals has authority to enter a final decision at the application state, in lieu of granting leave to appeal.  See MCR 7.205(E)(2) (“The court may grant or deny the application; enter a final decision; [or] grant other relief.”).  As a result, a party might consider making a specific request that the Court enter a peremptory order (e.g., granting summary disposition) as an alternative to granting leave to appeal.

Finally, it is important to remember that filing an application for leave to appeal, like claiming an appeal of right, does not automatically stay proceedings in the lower court.  Again, there are exceptions, such as in appeals from orders denying governmental immunity.  But in most cases, a party seeking a stay must first request it from the trial court, and then from the Court of Appeals if the trial court denies a stay.

A version of this article was previously published in the Michigan Defense Quarterly, Vol. 37, No. 2 (2020).