Marshawn Moss v. Mlc Rentals LLC ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MM, BB, and MM, by Next Friend MIA BYNUM, UNPUBLISHED
April 27, 2023
Plaintiffs-Appellees,
v No. 359838
Wayne Circuit Court
MLC RENTALS, LLC and MOTOWN RENTALS, LC No. 19-013490-NO
LLC,
Defendants-Appellants.
Before: M. J. KELLY, P.J., and SWARTZLE and FEENEY, JJ.
PER CURIAM.
The circuit court granted defendants summary disposition, without prejudice, concerning
two of the plaintiffs. The third plaintiff settled his claim with defendants, but a final order
regarding that settlement has never been entered. Defendants are attempting to appeal the circuit
court’s order of summary disposition without prejudice more than six months after its entry,
arguing that the circuit court is required to grant summary disposition with prejudice. This Court,
however, is without jurisdiction to consider defendants’ appeal. Accordingly, we dismiss this
appeal for lack of jurisdiction.
Plaintiffs are the children of Mia Bynum, and she was renting an apartment that was owned
and managed by one or both of defendants. Bynum and her three minor children were living in
the apartment when all three children were diagnosed with elevated levels of lead in their blood.
On April 20, 2021, the circuit court granted defendants summary disposition, without prejudice,
for the claims concerning the two youngest children. Defendants moved for reconsideration on
May 18, 2021, arguing that the circuit court palpably erred by not entering the summary
dispositions with prejudice. The circuit court has still not decided defendants’ motion for
reconsideration.
On July 12, 2021, the parties entered into a settlement concerning the eldest child’s claim.
The settlement is governed by MCR 2.420 because the eldest child is a minor. Under MCR
2.420(B)(4)(a), “[t]he judgment or dismissal must require that payment be made payable to the
minor’s conservator on behalf of the minor. The court shall not enter the judgment or dismissal
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until it receives written verification, on a form substantially in the form approved by the state court
administrator, that the probate court has passed on the sufficiency of the bond of the conservator.”
On November 18, 2021, the circuit court entered a form order to comply with MCR 2.420(B)(4)(a);
State Court Administrator’s Office (SCAO) Order Approving Settlement, form MC 95.
On December 9, 2021, defendants filed an appeal of the November 18, 2021 order. This
Court dismissed that appeal for lack of jurisdiction in an order explaining that “the November 18,
2021 order requesting bond approval by the probate court is not a final order as defined in MCR
7.202(6).” Marshawn Moss v MLC Rentals, LLC, unpublished order of the Court of Appeals,
entered December 14, 2021 (Docket No. 359544), p 1.
Defendants now appeal with delayed leave granted. Marshawn Moss v MLC Rentals, LLC,
unpublished order of the Court of Appeals, entered April 21, 2022 (Docket No. 359838), p 1. Even
though this Court granted defendants delayed leave to appeal, this Court instructed the parties to
address the following:
whether a final order has been entered below, particularly in light of the language
of the November 18, 2021 Request for Approval of Bond and Notice (SCAO Form
MC 95) indicating that, before dispositive orders are entered in the circuit court, the
Notice of Bond Approval shall be presented to the probate court for a probate
judge’s signature and then returned to the circuit court.
This Court determines de novo whether it has jurisdiction over an appeal. Wardell v
Hincka, 297 Mich App 127, 131; 822 NW2d 278 (2012). The time requirements for filing a claim
of appeal are jurisdictional. MCR 7.204(A); see also Chen v Wayne State Univ, 284 Mich App
172, 192; 771 NW2d 820 (2009). MCL 600.308 and the Michigan Court Rules govern this Court’s
jurisdiction. Relevant to this appeal, parties may appeal as of right to this Court any final judgment,
MCR 7.203(A), within 21 days of the judgment or order, MCR 7.204(A)(1). Additionally, this
Court may grant a party the ability to appeal by leave, MCR 7.203(B), any judgment appealable
to this Court by law or rule within 21 days of the judgment or order, MCR 7.205(A)(1), or any
judgment by delayed leave granted within six months of the judgment or order, MCR 7.205(A)(4).
In the present case, defendants’ argument on the merits appears to be well-taken. Summary
disposition generally is with prejudice, including when the basis is ripeness. See, e.g., ABB Paint
Finishing, Inc v National Union Fire Ins Co of Pittsburgh, Pa, 223 Mich App 559, 563; 567 NW2d
456 (1997). This would not, however, act to preclude a future claim related to the two children
under Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 (2005). An earlier recognition that a
matter is not yet ripe does not preclude or estop a court from subsequently taking up that matter if
it becomes ripe. See Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 550; 904 NW2d
192 (2017). With that said, this Court cannot reach defendants’ arguments because we do not have
jurisdiction.
Defendants filed their delayed application for leave to appeal the April 20, 2021 order on
January 7, 2022. Defendants delayed application for leave to appeal was submitted greater than
six months from the date of the order, and this Court is without jurisdiction under MCR
7.205(A)(4).
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Concerning defendants’ prior appeal in Docket no. 359544—even though parties may
appeal a final order and raise issues stemming from any other order entered earlier in the case,
Green v Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009), there is no final order in
this case. The parties must comply with 2.420(B)(4)(a), and SCAO Order Approving Settlement,
form MC 95, provides parties with a form to satisfy the court rule. The parties in this case used
that form, and it plainly instructs plaintiffs:
After the circuit/district court judge completes the Request, take it to the probate
court to obtain written verification that the bond is approved and that the bond, if
any, has been filed with the probate court. The Request will be presented to the
probate judge assigned to the probate case. Once the probate judge signs the Notice
of Bond Approval, the entire form will be returned to you for filing with the
circuit/district court. Dispositive orders will be entered by the circuit/district court
judge only after the Notice of Bond Approval has been filed
Form MC 95 was entered in the circuit court on November 18, 2021, with the request
section completed, including the signature of the circuit court’s presiding judge. This, however,
was not a final order under MCR 7.202(6), because the probate court has not completed the notice
section, or signed the form, as required by form MC 95’s instructions. Moreover, MCR 7.202(6)
defines a final order as “the first judgment or order that disposes of all the claims and adjudicates
the rights and liabilities of all the parties, including such an order entered after reversal of an earlier
final judgment or order,” and the eldest child’s claim is still outstanding because his settlement has
not been finalized under MCR 2.420(B)(4)(a).
Simply put, the form that plaintiffs submitted must be approved by the probate court, which
would enable the circuit court to enter an order concerning the settlement. This would be a final
order because it would be the first judgment in which all of the claims would be disposed. Without
a final order there is no basis for this Court to consider issues stemming from any other order
entered earlier in the case. Green, 282 Mich App at 301 n 6.
Therefore, this Court lacks jurisdiction to hear defendants’ appeal because they are
attempting to challenge an order entered more than six months before their application for delayed
leave to appeal, and there is no final order upon which this Court may hear previously issued
orders.
Dismissed.
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
/s/ Kathleen A. Feeney
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