C Faez Mona v. Farm Bureau General Insurance Company of Michigan ( 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
FAEZ MONA and DEBORAH MONA, UNPUBLISHED
October 19, 2023
Plaintiffs-Appellees,
v No. 364662
Wayne Circuit Court
FARM BUREAU GENERAL INSURANCE LC No. 20-004273-NF
COMPANY OF MICHIGAN,
Defendant-Appellant,
and
MICHIGAN ASSIGNED CLAIMS PLAN,
MICHIGAN AUTO INSURANCE PLACEMENT
FACILITY, and PROGRESSIVE MARATHON
INSURANCE COMPANY,
Defendants.
Before: MURRAY, P.J., and O’BRIEN and SWARTZLE, JJ.
MURRAY, P.J. (concurring).
The majority correctly concludes that the trial court’s order must be reversed because,
although the parties reached an agreement to arbitrate, the agreement did not contain the material
aspects of how arbitration would be conducted. I write separately, however, because there also
appears to be a jurisdictional problem with defendant’s appeal.
MCR 3.602(N) provides that appeals “may be taken as from orders or judgments in other
civil actions.” Pursuant to MCR 7.203(A)(1), this Court has jurisdiction of an appeal of right from
a final order of the circuit court “as defined in MCR 7.202(6)[.]” MCR 7.202(6)(a)(i) defines the
general final order in a civil case 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[.]” Here, the stipulated order of October 28, 2022, dismissed
the case to pursue arbitration, but also specified that the circuit court was “retaining jurisdiction”
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to enforce the agreement and any subsequent arbitration award. Our Court has previously held
that an order sending a matter to arbitration while retaining jurisdiction to enforce the award, is
not a final order appealable by right. Green v Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d
660 (2009). See also Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146, 148
n 1; 742 NW2d 409 (2007) (concluding that an order sending the case to arbitration was a final
order because the court did not retain jurisdiction to enforce the award or enter judgment on the
award).
The January 4, 2023 order was also not a final order. That order merely enforced what the
court determined were the terms of the arbitration agreement. Id. Although the court did not state
it was retaining jurisdiction to enforce any award, that it did so is only logical in light of the terms
of the October order, which the circuit court was acting under when enforcing the terms of the
arbitration agreement. Thus, neither of these orders were 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),
and there is no jurisdiction to resolve this dispute. However, because plaintiff did not file a motion
to dismiss in order to resolve this issue sooner, and because we have previously treated claims of
appeal as applications to efficiently resolve the matter on the merits, see Botsford Continuing Care
Corp v Intelistaf Healthcare, Inc, 292 Mich App 51, 61-62; 807 NW2d 354 (2011) and Detroit v
Michigan, 262 Mich App 542, 545-546; 686 NW2d 514 (2004), I would do so now to ensure the
efficient administration of justice.
/s/ Christopher M. Murray
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