Chapter 3: Pretrial Procedures

3.1Motions

A.Form1

Unless a motion is made during a hearing or trial, it must be in writing, state with particularity the grounds and authority on which it is based, state the relief or order sought, and be signed by the attorney or party as set out in MCR 1.109(D)(3) and MCR 1.109(E). MCR 2.119(A)(1). If a contested motion is filed after a proposed order is rejected under MCR 2.119, the party must attach a copy of the rejected order and an affidavit. MCR 2.119(A)(4).


Committee Tip

Note that only an attorney or party may sign a motion. MCR 1.109(E); MCR 2.119(A)(1). Thus, motions should not be submitted by probation officers or others who are not attorneys of record or parties in a case.

 

“A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C)[2] regarding citation of unpublished Court of Appeals opinions.” MCR 2.119(A)(2). However, a trial court need not deny a motion if it is filed without a brief, if the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 625-626 (2008).

Unless the court permits otherwise, the combined length of a motion and brief may not exceed 20 pages double spaced (exclusive of exhibits and attachments). MCR 2.119(A)(2)(a). “Except as permitted by the court or as otherwise provided in these rules, no reply briefs, additional briefs, or supplemental briefs may be filed.” MCR 2.119(A)(2)(b). The party submitting the brief must provide a copy to the judge. MCR 2.119(A)(2)(d). Permission to file a motion and brief in excess of the 20-page limit should be requested sufficiently in advance of the hearing on the motion to allow the opposing party adequate opportunity for analysis and response. See People v Leonard, 224 Mich App 569, 578-579 (1997) (finding an abuse of discretion where the trial court allowed the defendant to file an excessive-length brief during the hearing because the prosecution was deprived of an opportunity to analyze and respond to the brief).

The motion and notice of the hearing may be combined into one document. MCR 2.119(A)(3).

B.Affidavit (If Required)

“An affidavit must be verified by oath or affirmation.” MCR 1.109(D)(1)(f). “If an affidavit is filed in support of or in opposition to a motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.” MCR 2.119(B)(1).

An affidavit is valid if it is: “(1) a written or printed declaration or statement of facts, (2) voluntarily made, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Sherry v East Suburban Football League, 292 Mich App 23, 31 (2011). An affidavit lacking notarization is invalid, and a trial court may refuse to consider it sua sponte or on motion by a party. Id.

All documents or parts of documents that are referred to in the affidavit must be attached to the affidavit as sworn or certified copies, unless the documents:

“(a) have already been filed in the action;

(b) are matters of public record in the county in which the action is pending;

(c) are in the possession of the adverse party, and this fact is stated in the affidavit or motion; or

(d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion.” MCR 2.119(B)(2).

C.Notice

Unless the court rules or the trial court (for good cause) state otherwise, a written motion, notice of hearing, and brief must be served as follows:

(a) at least 9 days before the time set for hearing if by first-class mail.

(b) at least 7 days before the time set for hearing if delivered or electronically served. MCR 2.119(C)(1).

Unless the court rules or the trial court (for good cause) state otherwise, the response and accompanying brief and affidavits must be served as follows:

(a) at least 5 days before the hearing if by first-class mail.

(b) at least 3 days before the hearing if delivered or electronically served. MCR 2.119(C)(2).

The court may set different times for serving a motion or a response. MCR 2.119(C)(3). “[I]ts authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.” Id.

D.Uncontested Orders

A party may serve the opposing party with a proposed order and a request to stipulate. MCR 2.119(D)(1). Within 7 days of being served, the other party may stipulate to the entry of the proposed order or waive notice and hearing. MCR 2.119(D)(2). If neither action is taken within 7 days of being served, the order is considered rejected. Id. However, if the party stipulates or waives notice and hearing, the court may either enter the order or require a hearing on the motion. MCR 2.119(D)(3). The moving party must serve a copy of the stipulated order to the opposing party or notify any parties entitled to notice under MCR 2.107 that the court requires a hearing on the motion. MCR 2.119(D)(4).

E.Contested Motions

The court should set contested motions for hearing at a designated time. MCR 2.119(E)(1). The court has authority to reset the time for hearing. Id.

When a motion is based on facts not in the record, it may be heard on affidavits presented by the parties or on oral testimony or deposition. MCR 2.119(E)(2). “[T]he trial court itself is best equipped to decide whether the positions of the parties (as defined by the motion and response, as well as by the background of the litigation) mandate a judicial assessment of the demeanor of particular witnesses in order to assess credibility as part of the fact-finding process.” Williams v Williams, 214 Mich App 391, 399 (1995).

The court may also eliminate or limit oral arguments on motions and order briefs in support of and in opposition to the motion. MCR 2.119(E)(3).

Appearances by the moving party and nonmoving party are required pursuant to MCR 2.119(E)(4)(b). The moving party must appear unless excused by the court. Id. The nonmoving party must either appear at the hearing, or file a concise statement of reasons why he or she rejected the proposed order before the hearing. MCR 2.119(E)(4)(a)(i)-(ii).

“If a party violates the provisions of [MCR 2.119(E)(4)(a) or (b)], the court shall assess costs against the offending party, that party’s attorney, or both, equal to the expenses reasonably incurred by the opposing party in appearing at the hearing, including reasonable attorney fees, unless the circumstances make an award of expenses unjust.” MCR 2.119(E)(4)(c). The moving party may also be penalized by a fine not to exceed $100 for failing to appear at a hearing on a motion. MCR 2.119(E)(4)(b).

F.Decision

When possible, all decisions should be made from the bench or within a few days of submission. MCR 8.107(A). In all other cases, a decision should be rendered no later than 35 days after submission. MCR 8.107(A). Matters not decided within 56 days of submission must be identified on the quarterly “Report as to Matters Undecided.” MCR 8.107(B). The quarterly report may also be referred to as “Delay in Matters Submitted to Judge.”

G.Entry of Order

Except as otherwise provided, “all judgments and orders must be in writing, signed by the court, and dated with the date they are signed.”3 MCR 2.602(A)(1). The date the judgment or order is signed is the date of entry. MCR 2.602(A)(2). “Where electronic filing is implemented, judgments and orders must be issued under the seal of the court.” MCR 2.602(A)(4).

Immediately before the judge’s signature, the judgment must state “whether it resolves the last pending claim and closes the case.” MCR 2.602(A). “Such a statement must also appear on any other order that disposes of the last pending claim and closes the case.” Id.

The court must enter an order using one of the following methods:

The court may sign the judgment or order when the relief in the order or judgment is granted. MCR 2.602(B)(1).

The court must sign the judgment or order when all parties approve of its form and as long as it is consistent with the court’s decision. MCR 2.602(B)(2). For approval of an order’s form, “the parties must agree regarding the order’s structure or, if relevant, any procedure that it may establish for the disposition of the matter before the court.” In re Leete Estate, 290 Mich App 647, 657 (2010).

The court must sign a properly submitted proposed order if no written objections have been filed within 7 days after service of notice, and the judgment or order is consistent with the court’s decision. MCR 2.602(B)(3). (This is commonly referred to as the “Seven-Day Rule.”) If objections are received, the court must schedule a hearing for all objections within 14 days after receiving the first objection, or as soon thereafter as is practicable. Id. The party filing the objection must serve notice of the hearing as provided in MCR 2.602(B)(3)(c). MCR 2.602(B)(3)(d).

“A party may prepare a proposed judgment or order and notice it for settlement before the court.” MCR 2.602(B)(4). A motion fee may not be charged. Id.

A party objecting to the entry of a proposed judgment under MCR 2.602(B)(3) is not required to provide a transcript of the prior proceeding. Jones v Jones, 320 Mich App 248, 261 (2017) (holding that the trial court erred by rejecting the defendant’s objections to the proposed judgment based on the lack of a transcript and noting that “given the compressed timing requirements under [MCR 2.602], it is doubtful that timely obtaining a copy of a transcript would be possible in most circumstances”).

H.Standard of Review

A trial court’s decision whether to omit or limit oral argument is reviewed for an abuse of discretion. Fisher v Belcher, 269 Mich App 247, 252 (2005).

“The decision whether to hold an evidentiary hearing under MCR 2.119(E)(2) is reviewed for an abuse of discretion.” Williams, 214 Mich App at 399.

1    Many jurisdictions have local court rules governing the form of motions.

2   MCR 7.215(C)(1) provides that an unpublished opinion is not precedentially binding under the rule of stare decisis and requires a party who cites an unpublished opinion to explain why it was cited and how it is relevant to the issues presented and also provide a copy of the opinion to the court and to opposing parties.

3    See MCR 1.109(E) for more information on signature requirements.