Chapter 4: Pretrial Procedures
4.1Motions1
A.Form2
Unless made during a hearing or trial, a motion 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(D), the party must attach a copy of the rejected order and an affidavit. MCR 2.119(A)(4).
“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citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C)[3] regarding citation of unpublished Court of Appeals opinions.”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 Mgt, LLC, 277 Mich App 622, 625-626 (2008). Except where electronic filing has been implemented, a copy of the motion and brief, as well as any response, must be provided to the judge. MCR 2.119(A)(2)(d).
The combined length of a motion and brief may not exceed 20 pages double spaced (exclusive of exhibits and attachments) without permission of the court. MCR 2.119(A)(2)(a). 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).
“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 motion and notice of the hearing may be combined into one document. MCR 2.119(A)(3).
“Except when otherwise specifically provided by rule or statute, a document need not be verified or accompanied by an affidavit.” MCR 1.109(D)(3). However, if an affidavit is filed, it “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 an opposing 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.Filing and Serving Motions and Responses
“Unless the court sets a different time, a motion must be filed at least 7 days before the hearing, and any response to a motion required or permitted by these rules must be filed at least 3 days before the hearing.” MCR 2.119(C)(4). Generally, filing is complete upon delivery to the court clerk. See MCR 1.109(C).
Unless the court rules or the trial court (for good cause) state otherwise, a written motion, notice of hearing, and supporting brief must be served as follows:
(a) at least 9 days before the time set for hearing if by first-class mail; or
(b) at least 7 days before the time set for hearing if delivered or electronically served pursuant to MCR 2.107(C)(1), MCR 2.107(C)(2),4 or MCR 1.109(G)(6)(a). 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; or
(b) at least 3 days before the hearing if delivered or electronically served pursuant to MCR 2.107(C)(1), MCR 2.107(C)(2),5 or MCR 1.109(G)(6)(a). 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.Filings by Incarcerated Individuals
A pleading or other document filed by an unrepresented individual who is incarcerated in prison or jail “must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline. Proof of timely filing may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.” MCR 1.112.
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). The order is considered rejected if the opposing party does not take either action within 7 days of being served. 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 if the court requires a hearing on the motion. MCR 2.119(D)(4).
Contested motions should be noticed for hearing by the moving party at the time designated by the court for the hearing of motions. MCR 2.119(E)(1). The court may 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 governed by MCR 2.119(E)(4). The moving party must appear unless excused by the court. MCR 2.119(E)(4)(b). The nonmoving party must either appear at the hearing, or file a response containing a concise statement of opposition to the motion supported by legal authority. MCR 2.119(E)(4)(a)(i)-(ii).
“If a party violates the provisions of [MCR 2.119(E)(4)(a) or MCR 2.119(E)(4)(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).
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. Id. Matters not decided within 56 days of submission must be identified on the quarterly “Report as to Matters Undecided.” MCR 8.107(B).
Except as otherwise provided in MCR 2.602 and MCR 2.603, “all judgments and orders must be in writing, signed by the court, and dated with the date they are signed.” 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)(3). “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, 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, as long as 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.
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”).
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 v Williams, 214 Mich App 391, 399 (1995).