BARRY A LEWIS V STATE OF MICHIGAN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BARRY A. LEWIS,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellant,
No. 218786
Shiawassee Circuit Court
LC No. 94-003719-NO
v
STATE OF MICHIGAN, MICHIGAN STATE
POLICE, and COLONEL MICHAEL DEAN
ROBINSON,
Defendants-Appellees.
Before: Jansen, P.J., and Doctoroff and Owens, JJ.
PER CURIAM.
This case arises out of plaintiff’s complaint filed in the circuit court in April 1994
alleging race, sex, and age discrimination under the state Civil Rights Act, MCL 37.2101, et seq.
Plaintiff, a white male, had been a Michigan State police trooper since 1973 and he filed suit
against defendants because he was not promoted to sergeant. The crux of his complaint was that
the affirmative action plan utilized by the State Police violated the Civil Rights Act, MCL
37.2210, and plaintiff alleged a claim under 42 USC 1983 against Colonel Robinson, the director
of the State Police. During the course of the appellate proceedings, defendants filed a motion to
dismiss for lack of jurisdiction contending that plaintiff’s appeal is untimely. In an unpublished
order entered on September 1, 1999, this Court held defendants’ motion to dismiss in abeyance
for submission to the case call panel to decide this issue in an opinion. We now dismiss
plaintiff’s appeal for lack of jurisdiction.
The procedural history surrounding this case is lengthy and complex. Plaintiff filed his
complaint in the circuit court in April 1994 and, one year later, filed a separate action against the
State of Michigan in the court of claims (lower court number 94-015734-CM) alleging a
violation of his equal protection rights under the state constitution. In June 1995, the cases were
consolidated before Shiawassee Circuit Court Judge Gerald Lostracco. With respect to the
circuit court case, in August 1995, plaintiff amended his circuit court complaint and in April
1996, defendants filed a motion for summary disposition. The trial court denied the motion in
November 1996, and shortly thereafter, plaintiff again amended his circuit court complaint. In
December 1996, defendant filed an application for leave to appeal in this Court from the trial
court’s denial of their motion for summary disposition. This Court, in an unpublished order
entered on January 29, 1997 (Docket No. 199713), peremptorily vacated the trial court’s order
and remanded for further proceedings, noting that to the extent that plaintiff’s state law claims
-1-
were based on conduct or practices contained in affirmative action plans approved by the Civil
Rights Commission, defendant were not subject to liability under the state Civil Rights Act.
Following remand, defendants renewed their motions for summary disposition with
respect to both the circuit court and court of claims cases. At the hearing held on April 17, 1997,
the trial court granted defendants’ motion for summary disposition with respect to the circuit
court action and the written order was entered on May 8, 1997. The order stipulating to the
dismissal of the age discrimination claim was entered on May 19, 1997. With respect to the
court of claims case, the trial court denied the motion for summary disposition and set the matter
for trial before visiting Judge Martin Clements. The court of claims found in favor of plaintiff
and entered the written judgment on June 17, 1997. An order awarding to plaintiff costs and fees
was then entered on June 18, 1997.
Defendants appealed from the court of claims action only on July 7, 1997, but wrongly
identified the final order as that entered on June 18, 1997, rather than June 17, 1997. Plaintiff
purported to file a cross appeal but only to the extent that defendant timely and properly appealed
the trial court’s denial of their motion for summary disposition regarding the court of claims
complaint. Plaintiff specifically stated that to the extent that defendants failed to properly and
timely appeal from the court of claims judgment, then plaintiff made no cross appeal. Because
defendants had in fact wrongly identified the final judgment in their claim of appeal, this Court
on its own motion dismissed defendants’ appeal for lack of jurisdiction in an unpublished order
entered on March 19, 1998 (Docket No. 204525).
Defendants then filed a delayed application for leave to appeal on June 16, 1998, in the
court of claims case only, and plaintiff again filed a contingent cross appeal on June 24, 1998.
However, because defendants’ appeal was not an appeal by right, a cross appeal is not properly
filed until after the application is granted. See MCR 7.207(B)(2). In an unpublished order
entered on November 16, 1998 (Docket No. 212396), this Court, in lieu of granting defendants’
application for leave to appeal, peremptorily reversed the court of claims judgment and the order
granting costs and fees and remanded for proceedings consistent with Cremonte v Michigan
State Police, 232 Mich App 240; 591 NW2d 261 (1998). In Cremonte, this Court held that a
claim for money damages against the state for discrimination in violation of the Equal Protection
Clause of the state constitution because of affirmative action policies followed by the State
Police was not an appropriate case in which to infer a damage remedy. Plaintiff’s motion for
rehearing was denied by this Court in an unpublished order entered on February 26, 1999.
On March 12, 1999, plaintiff filed an application for leave to appeal in the Supreme
Court regarding the court of claims case. On March 26, 1999, the trial court purported to enter
an order dismissing plaintiff’s claims in the court of claims case pursuant to this Court’s
peremptory order. On April 12, 1999, plaintiff filed the present claim of appeal in this Court
from the circuit court case, identifying the March 26, 1999, order as the final order. In the
meantime, the Supreme Court granted plaintiff’s application for leave to appeal from the
peremptory order regarding the court of claims case on April 18, 2000. The Supreme Court
decided the matter in an opinion on July 17, 2001, which affirmed the peremptory order, albeit
using different reasoning. See Lewis v Michigan, 464 Mich 781; 629 NW2d 868 (2001).
At issue before us is whether we have jurisdiction to decide plaintiff’s claim of appeal
regarding the circuit court case. Defendants argue that plaintiff’s appeal should be dismissed
-2-
because it is not timely regardless of whether the final order or judgment is considered to be the
order granting summary disposition entered on May 8, 1997, or the court of claims judgment that
ultimately disposed of all the claims on June 17, 1997. Plaintiff counters that the final order was
the March 26, 1999, order entered by the trial court that ultimately dismissed the court of claims
action pursuant to this Court’s peremptory order.
This Court has jurisdiction over an appeal of right from a “final judgment or final order
of the circuit court, court of claims, and recorder’s court.” MCR 7.203(A)(1). A final judgment
or final order is defined 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 [MCR 7.202(7)(a)(i).]
An appeal of right must be filed within twenty-one days after entry of the order or judgment
appealed from, MCR 7.204(A)(1)(a), and a time limit for an appeal of right is jurisdictional,
MCR 7.204(A).
This appeal is somewhat complicated by the fact that there were two consolidated cases
in the lower court. Based on a reading of the court rules, we find that consolidated cases in the
lower court should be considered as one for purposes of appeal. Indeed, the definition of final
judgment or order in a civil case justifies this ruling because a final judgment or order is one that
disposes of all the claims and adjudicates the rights and liabilities of all the parties. MCR
7.202(7)(a)(i). Moreover, MCR 2.604, which pertains to a judgment in actions involving
multiple claims or multiple parties, provides in pertinent part:
[A]n order or other form of decision adjudicating fewer than all the claims, or the
rights and liabilities of fewer than all the parties, does not terminate the action as
to any of the claims or parties, and the order is subject to revision before entry of
final judgment adjudicating all the claims and the rights and liabilities of all the
parties. Such an order or other form of decision is not appealable as of right
before entry of final judgment. A party may file an application for leave to appeal
from such an order.
In the present case, the final judgment was that entered on June 17, 1997. Although the
order entered on May 8, 1997, dismissed the claims against defendants in the circuit court case,
the circuit court case was consolidated with a case in the court of claims that subsequently went
to a bench trial and involved the same parties and factual situation. Therefore, we hold that the
final judgment in this case was that entered on June 17, 1997, because it was not until that point
that all of the claims, rights, and liabilities of all the parties were adjudicated.
Plaintiff has not appealed from the June 17, 1997, judgment, but has instead appealed
from the March 26, 1999, order entered by the trial court pursuant to this Court’s peremptory
order as the “final order” entered in the matter. We reject plaintiff’s contention that the March
26, 1999, order is the final order in this case. First, the trial court was without authority to enter
this order because there was an application for leave to appeal pending in the Supreme Court at
that time. Plaintiff filed his application for leave to appeal on March 12, 1999 from this Court’s
-3-
November 16, 1998, peremptory order, and subsequent denial of his motion for rehearing of
February 26, 1999.
Because leave to appeal was pending in the Supreme Court, the trial court was without
authority to amend the final judgment that had been entered on June 17, 1997. The Supreme
Court’s decision in People v George, 399 Mich 638; 250 NW2d 491 (1977), controls this
situation. In George, the defendant was convicted of second-degree murder and following an
appeal of right to this Court, the conviction was reversed and remanded for a new trial. The
prosecution then filed an application for leave to appeal in the Supreme Court. The trial court,
while the application for leave to appeal was pending, set a date for a new trial in light of this
Court’s opinion reversing. The defendant then filed an interlocutory motion in the Supreme
Court to determine the trial court’s jurisdiction. The Supreme Court stated that if it denied the
pending application for leave to appeal, then the Court of Appeals judgment would be the final
adjudication of the case and could be enforced according to its terms. If the Supreme Court
granted the pending application, then jurisdiction of the case would vest in the Supreme Court.1
Jurisdiction would revest in the Court of Appeals or the circuit court upon issuance of any final
order or judgment issued by the Supreme Court. The Supreme Court specifically held in
George, supra, p 640, that the trial court did not have jurisdiction while the prosecution’s
application for leave to appeal was pending in the Supreme Court to retry the defendant. Accord
People v Phillips, 416 Mich 63, 74-75; 330 NW2d 366 (1982) (also noting that a timely
application for leave to appeal to the Supreme Court from a decision of the Court of Appeals
effectively stays the Court of Appeals decision as a final adjudication).
The procedural situation in George is very similar to the present case. Here, the final
judgment was entered on June 17, 1997, by the court of claims and this Court later peremptorily
reversed and remanded on the authority of Cremonte. Plaintiff filed a timely application for
leave to appeal in the Supreme Court, and the trial court purported to modify the June 17, 1997,
judgment because of this Court’s peremptory order. However, it is clear that the trial court did
not have the authority to modify the June 17, 1997, judgment while the application for leave to
appeal was pending in the Supreme Court. See also, MCR 7.302(F)(3). Consequently, the
March 26, 1999, order cannot be deemed to be the final order entered by the trial court.
In addition to the fact that the trial court did not have authority to enter the March 26,
1999, order for the reasons that we have stated, in a civil case, the final order or judgment is the
first order that disposes of all the claims of all the parties. MCR 7.202(7)(a)(i); Allied Electrical
Supply Co, Inc v Tenaglia, 461 Mich 285, 288; 602 NW2d 572 (1999). Here, the first order that
disposed of all the claims of all the parties was the judgment entered on June 17, 1997.
Further, we reject plaintiff’s argument to accept this appeal based on judicial economy.
First, plaintiff is well beyond the one-year time limit for filing a delayed application for leave to
appeal in this Court. MCR 7.205(F)(3). Moreover, plaintiff clearly had other options to perfect
an appeal in this Court. Initially, plaintiff could have filed an application for leave to appeal
from the May 8, 1997, order (as the non-final order) of the trial court granting summary
1
See MCR 7.302(F)(3), which corresponds to this holding.
-4-
disposition in the circuit court matter. MCR 7.203(B); MCR 7.205. Additionally, plaintiff could
have filed a claim of appeal from the final judgment entered on June 17, 1997, as an appeal of
right. Instead, plaintiff opted to file a contingent claim of cross appeal; however, we emphasize
that plaintiff was not required to utilize this strategy. Plaintiff clearly could have perfected his
claim of appeal from the June 17, 1997, judgment by filing his own appeal of right or by filing a
proper cross appeal.
Accordingly, we conclude that we do not have jurisdiction to decide this appeal because
it is not timely. MCR 7.204(A). The final judgment was that entered on June 17, 1997, because
that was the first order disposing of all the remaining claims and adjudicating all the remaining
rights and liabilities of all the parties and we specifically note that consolidated cases are
considered as one for purposes of appeal. MCR 7.202(7)(a)(i); MCR 2.604. Plaintiff clearly had
the right and opportunity to perfect an appeal of right after entry of the June 17, 1997, judgment.
We cannot agree that the March 26, 1999, order is the final order, as identified by plaintiff,
because the trial court did not have the authority to enter that order since an application for leave
to appeal was pending in the Supreme Court at that time. MCR 7.208(A); MCR 7.302(F)(3).
Moreover, the first judgment that disposed of all the claims and adjudicated the rights and
liabilities of all the parties was the judgment entered by the court of claims on June 17, 1997.
Consequently, plaintiff’s claim of appeal filed on April 12, 1999, is untimely as an appeal of
right and cannot be accepted within the one-year time period for a delayed application for leave
to appeal. Because the time requirements for filing a claim of appeal are jurisdictional, MCR
7.204(A), and the appeal is untimely, we are without jurisdiction to decide this appeal.
Appeal dismissed for lack of jurisdiction.
/s/ Kathleen Jansen
/s/ Martin M. Doctoroff
/s/ Donald S. Owens
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
