Order
Entered:

        October 19, 1995


93-46

Amendments of Michigan Court
Rules 7.202 and 7.203

        On order of the Court, the following amendments of MCR
7.202 and 7.203 were adopted October 19, 1995, to be effective
January 1, 1996. The rules are amended to read as follows:


Rule 7.202       Definitions
For purposes of this subchapter:
        (1)-(5)  [Unchanged.]
        (6)      "signed" means the original signature (facsimile
                 signature is not permitted) of the attorney for a
                 party or the signature of a party proceeding on
                 the party's own behalf;
        (7)      "custody case" means a domestic relations case in
                 which the custody of a minor child is an issue,
                 an adoption case, or a case in which the juvenile
                 division of probate court has entered an order
                 terminating parental rights or an order of
                 disposition removing a child from the child's
                 home;
        (8)      "final judgment" or "final order" means:
                 (a)     In a civil case,
                         (i)      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, or
                         (ii)     an order designated as final
                                  under MCR 2.604(B);
                 (b)     In a criminal case,
                         (i)      an order dismissing the case;
                         (ii)     the original sentence imposed
                                  following conviction;
                         (iii)    a sentence imposed following
                                  the granting of a motion for
                                  resentencing;
                         (iv)     a sentence imposed by the trial
                                  court following a remand from
                                  an appellate court; or
                         (v)      a sentence imposed following
                                  revocation of probation.

Rule 7.203       Jurisdiction of the Court of Appeals
(A)     Appeal of Right. The court has jurisdiction of an appeal
        of right filed by an aggrieved party from the following:
        (1)      A final judgment or final order of the circuit
                 court, court of claims, and recorder's court,
                 except a judgment or order of the circuit court
                 or recorder's court
                 (a)     on appeal from any other court or
                         tribunal;
                 (b)     in a criminal case in which the
                         conviction is based on a plea of guilty
                         or nolo contendere;
        (2)      A judgment or order of a court or tribunal from
                 which appeal of right to the Court of Appeals has
                 been established by law or court rule;
        (3)      In a divorce or paternity action, a postjudgment
                 order affecting the custody of a minor.
(B)-(E) [Unchanged.]

        Levin, J. (dissenting). The constitution provides that
"[t]he jurisdiction of the court of appeals shall be provided by
law . . . ."*1 (Emphasis added.) The Revised
Judicature Act as last amended by 1994 PA 375 provides that "the
court of appeals has jurisdiction on appeals from . . . [a]ll final
judgments from the circuit court, court of claims, and recorder's
court," except, "final judgments and orders described in subsection
(2)."*2 (Emphasis added.) Subsection (2) provides
that "[t]he court of appeals has jurisdiction on appeal from" the
orders and judgments therein delineated "only upon application for
leave to appeal granted by the court of appeals . . . ." (Emphasis
added.) Among the orders and judgments so delineated are "[a]ny
other judgment or interlocutory order as determined by court
rule."*3 (Emphasis added.)
        Today's amendment provides that only "the first judgment
or order that disposes of all the claims and adjudicates the rights
and liabilities of all the parties" is a "final judgment" or "final
order." (Emphasis added.) While Act 375 might be read as empowering
this Court to except a postjudgment judgment, it does not provide
such a power to this Court respecting a postjudgment order, but
only respecting an "interlocutory order." (Emphasis added.)
        In Gherardini v Ford Motor Co, 394 Mich 430, 431 (1975),
this Court defined a final judgment or order as one that "affect[s]
with finality rights of the parties . . . ."*4
Today's redefinition may lead to controversy whether a particular
judgment or order disposes of "all" the claims and adjudicates the
rights and liabilities of "all" the parties, or whether there is a
loose end that might have been or might have become appealable
postjudgment as of right under the Gherardini definition as
elucidated in the post-Gherardini decisions of this Court.*5
        It has not been shown that the current rule is
"broken."*6 The Court of Appeals is no longer
seeking such a redefinition, apparently satisfied that other
amendments adopted by this Court have addressed the most emergent
problems.*7

        Cavanagh, J., concurs with Levin, J.

STAFF COMMENT: The October 19, 1995, amendment of MCR 7.202 adds a
definition of "final judgment" or "final order". The principal
effect would be to eliminate appeals of right from certain
postjudgment orders. New MCR 7.203(A)(3) retains an exception,
formerly found in MCR 7.203(A)(1), for postjudgment orders in
divorce and paternity actions that affect the custody of a minor.
MCR 7.203(A)(2) is amended to make clear that appeals of right
exist where so provided by court rule, as well as by statute. See,
e.g., MCR 5.801(B); MCR 5.993(A).

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.

Endnotes
*1 The jurisdiction of the court of appeals shall be
provided by law and the practice and procedure therein shall be
prescribed by rules of the supreme court. [Const 1963, art 6, Sec.
10.]

*2 (1)    The court of appeals has jurisdiction on
                         appeals from the following orders and
                         judgments which shall be appealable as a
                         matter of right:
                 (a)     All final judgments from the circuit
                         court, court of claims, and recorder's
                         court, except judgments on ordinance
                         violations in the traffic and ordinance
                         division of recorder's court and final
                         judgments and orders described in
                         subsection (2). [MCL 600.308; MSA
                         27A.308. See also MCL 600.309; MSA
                         27A.309.]

*3 (2)    The court of appeals has jurisdiction on
                         appeal from the following orders and
                         judgments which shall be reviewable only
                         upon application for leave to appeal
                         granted by the court of appeals:
                              * * *
                 (e)     Any other judgment or interlocutory order
                         as determined by court rule. [MCL
                         600.308; MSA 27A.308.]

*4 This definition was derived from Equitable Trust
Co v Bankers Trust Co, 268 Mich 394, 397-398 (1934).

*5 People v Jones, 394 Mich 434 (1975); People v
Boulding, 423 Mich 854 (1985); In re Doxtader v Sivertson, 432 Mich
895 (1989); Henning v McGlynn, 424 Mich 897 (1986); General
Electric Credit Corp v Northcoast Marine, Inc, 402 Mich 297 (1978);
Grand Rapids Growers, Inc v Old Kent Bank & Trust Co, 406 Mich 907
(1979); Sims v Detroit, 439 Mich 881 (1991); Detroit v Nat'l
Exposition Co, 417 Mich 918 (1983); Gentile v Detroit, 423 Mich 855
(1985); Yank v Detroit, 423 Mich 855 (1985); Twelfth Estate
Condominiums v Delco Construction Co, 435 Mich 870 (1990); and Belt
v Jones, 419 Mich 964 (1984).

*6 See, e.g., 15B Wright, Miller & Cooper, Federal
Practice & Procedure, Sec. 3916, pp 349, 352-356, discussing the
federal practice respecting "post-judgment orders."

*7 MCR 7.214(E), allowing decision without oral
argument. Order of July 11, 1991, extended by orders of September
29, 1992, September 15, 1993, and December 21, 1993.
        MCR 7.203(A)(1), eliminating appeals of right from agency
decisions where there has been an appeal of right to the circuit
court. Order of December 15, 1993.
        MCR 7.203(A)(1), eliminating appeals of right from
postjudgment orders in domestic relations cases, except for orders
affecting the custody of a minor. Order of December 15, 1993.
        MCR 7.205, shortening the time within which a delayed
application for leave to appeal may be filed from eighteen months
to twelve months. Order of March 3, 1995.
        MCR 2.604, eliminating the authority of a trial judge to
direct entry of a final order, permitting appeal of right from an
otherwise interlocutory order. Order of May 16, 1995, modified by
order of September 19, 1995.
        MCR 6.502(G), limiting criminal defendants to one motion
for relief from judgment. Order of June 2, 1995.