THOMAS D KURTZ V FAYGO BEVERAGES
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED MAY 29, 2002
THOMAS KURTZ,
Plaintiff-Appellee,
v
No. 118723
FAYGO BEVERAGES, INCORPORATED,
Defendant-Appellant.
________________________________
PER CURIAM
In
this
worker’s
compensation
case,
the
Worker’s
Compensation Appellate Commission dismissed plaintiff’s appeal
because the transcript was not timely filed.
The Court of
Appeals thereafter reversed, relying on Brooks v Engine Power
Components, Inc, 241 Mich App 56; 613 NW2d 733 (2000).
We conclude that in the circumstances of this case, in
which plaintiff did not timely file a request for an extension
of time, the WCAC did not abuse its discretion in dismissing
the appeal. We thus reverse the Court of Appeals decision and
reinstate the WCAC’s dismissal of plaintiff’s appeal.
I
Plaintiff sought worker’s compensation benefits, claiming
that he injured his back in the course of his employment with
defendant.
The magistrate granted an open award of benefits
on December 19, 1995, following trial.
On December 28, 1998,
defendant
benefits.1
filed
a
petition
to
stop
After
a
hearing, the magistrate granted the motion in an order mailed
June 14, 2000, finding that plaintiff’s disability had ended
by December 2, 1998.
He also ordered recoupment of benefits
from that date.
On July 10, 2000, plaintiff filed a timely claim for
review.
Under MCL 418.861a,2 the transcript was due within
sixty days thereafter, or on or before September 8, 2000.
After receiving the claim for review, the WCAC sent the
parties a form letter regarding the appeal procedure, which
included the following about transcripts and extensions:
TRANSCRIPTS
The appellant is responsible for filing the
complete, original hearing transcript with the
1
The magistrate denied an earlier petition to stop
benefits on July 25, 1997.
2
(5) A party filing a claim for review under
section 859a shall file a copy of the transcript of
the hearing within 60 days of filing the claim for
review and shall file its brief with the commission
and provide any opposing party with a copy of the
transcript and its brief not more than 30 days
after filing the transcript. For sufficient cause
shown, the commission may grant further time in
which to file a transcript.
2
Commission not later than 60 days after filing the
Claim for Review. Copies of the transcript must be
served
on
all
opposing
parties.
Ref:
Section 861a(5).
Beginning January 1, 1999, the
court reporting service will file the ordered
original and all copies upon the appellant for
distribution. The court reporting service will no
longer
file
transcripts
directly
with
the
Commission.
EXTENSION OF TIME FOR FILING TRANSCRIPTS
Extensions of time will be considered if
requested prior to the expiration of the above due
dates, and will normally be granted on good cause
shown.
The first extension shall be granted
automatically for 60 days. If extension requests
are not timely, they will only be granted in
extraordinary circumstances.
Plaintiff failed to file the transcript by September 8,
2000, and did not request an extension of time. Therefore, on
September 26, 2000, the WCAC issued an order dismissing the
appeal.
In its letter, the commission stated that it would
“consider a timely motion for reconsideration, supported by
affidavit or other evidence, showing that the reason for the
tardy filing was beyond plaintiff’s control.”
Plaintiff filed a motion for reconsideration explaining
that he could not file the transcript on or before September 8
because the reporter did not complete the transcript until
September 14, 2000.3
On October 18, 2000, the WCAC issued an
order denying reconsideration, “because plaintiff failed to
3
The reporter’s certificate attached to the motion was
dated September 16, 2000, but the plaintiff did not file it
with the WCAC until September 29, 2000, after entry of the
dismissal order. An additional transcript volume was prepared
later as the result of an oversight on behalf of the reporting
firm.
3
show good cause that the untimely filing of the transcript was
the result of circumstances beyond his control.”
Plaintiff filed an application for leave to appeal with
the Court of Appeals.
The Court issued a peremptory order
reversing and remanding to the WCAC for consideration of
plaintiff’s appeal, stating that it was bound by Brooks and a
series of peremptory orders of this Court.4
The Court further
stated that, but for those authorities, it would affirm the
WCAC on the basis that it did not abuse its discretion in
dismissing
the
appeal
for
failure
to
timely
file
the
transcript.
Defendant has filed an application for leave to appeal to
this Court.
II
As we explained in Marshall v D J Jacobetti Veterans
Facility (After Remand), 447 Mich 544, 548-550; 526 NW2d 585
(1994),
the
Worker’s
Compensation
Appellate
Commission’s
practices regarding deadlines and extensions have previously
been characterized as “chaotic.”
We noted, however, that
effective January 1, 1993, the WCAC provided adequate notice
of
a
change
of
practice
regarding
enforcement
of
administrative rules and the statutory time limits.
its
That
policy stated:
4
Unpublished order, entered February 20, 2001 (Docket
No. 230773).
4
“The
Workers'
Compensation
Appellate
Commission has unanimously adopted a formal policy
concerning filing requirements when requesting
review of a workers' compensation claim.
“The Commission's policy will apply to all
appeals filed on or after January 1, 1993.
The
new policy is as follows:
“1.
Per
the
statutory
requirements
of
section 861a(5), the transcript is due within 60
days of the filing of the appeal.
Any motion for
an extension of time in which to file the
transcript must be filed within that 60-day period.
In the event a motion for extension is timely
filed, an automatic 60-day extension shall be
granted from the date of the extension letter.
Warning letters, advising that a transcript has not
been timely received, shall no longer be sent for
any appeals filed on or after January 1, 1993.
If
the transcript or request for extension is not
filed in a timely manner, the appeal shall be
dismissed.
“2.
Per
the
statutory
requirements
of
section 861a(5), the appellant's brief is due
within 30 days of the filing of the transcript.
Any motion for an extension of time in which to
file the brief must be filed within that 30-day
period.
In the event a motion for extension is
timely filed, an automatic 60-day extension shall
be granted from the date of the extension letter.
If the brief or request for extension is not filed
in a timely manner, the appeal shall be dismissed
or the decision of the magistrate shall be
summarily affirmed.
“For appeals filed prior to January 1, 1993,
each assigned panel of the Commission shall
continue to exercise its discretion concerning
extensions and dismissals.
Because no party is
guaranteed a particular panel, parties would be
well advised to assume that their panel is composed
of commissioners adhering to the strictest possible
policy
concerning
the
statutory
filing
requirements.”
[447 Mich 549-550 (emphasis
added).]
Marshall involved a dismissal of an appeal because of the
plaintiff’s failure to timely file a brief on appeal.
5
We
reversed the dismissal because it occurred before the WCAC
gave clear notice of its changed policy.
We announced,
however, that dismissals of appeals filed after January 1,
1993, would be evaluated in light of the new policy.
Our
Marshall
decision
included
a
footnote
regarding
untimely filing of transcripts, a subject that we expressly
declined to rule upon:
We are aware that the WCAC has dismissed some
appeals for failure to file the transcript timely,
and we observe that the WCAC's notice also states
that transcript deadlines are to be strictly
enforced. While the policy reasons for enforcing a
deadline on the filing of transcripts may be at
least as strong as those for enforcing a briefing
deadline, there are circumstances in which an
attorney cannot prevent the tardy filing of a
timely ordered transcript. We express no opinion
regarding
the
proper
outcome
in
such
a
circumstance. [447 Mich 550, n 9.]
The Court of Appeals opinion on which the decision in the
present case was based, Brooks, dealt at length with the
matter of late transcripts. The Brooks Court reviewed several
peremptory orders of this Court setting aside dismissals that
had been entered on the basis of the failure to timely file
transcripts.5
The Court viewed these orders as answering the
question left open in Marshall—“the ‘proper outcome’ when the
WCAC
dismisses
an
appeal
for
failure
to
timely
file
a
transcript, even though the appellant’s attorney could not
5
Tomblin v MNP Corp, 456 Mich 871 (1997); Horvath v
Pegasus Tavern, 454 Mich 912 (1997);
Bright v Voss Steel
Corp, 454 Mich 855 (1997); Alshubi v Chrysler Corp, 454 Mich
854 (1997); Wimbush v Noecker Vinyl & Plastics, 453 Mich 963
(1996).
6
prevent the tardy filing.”
241 Mich App 61.
The Court
concluded that our orders
constitute binding precedent for the proposition
that the WCAC abuses its discretion when it
dismisses an appellant's appeal for failing to
timely prepare transcripts when the appellant can
show that the failure occurred "for reasons beyond
the control of appellant's counsel.” [241 Mich App
62.]
Brooks established a rule that the WCAC abuses its
discretion by dismissing an appeal for failure to timely file
a transcript when such failure is the fault of the court
reporter
and
not
of
the
party
or
counsel.
The
court
reporter’s failure to timely prepare the transcript, however,
does not, in itself, excuse a tardy filing.
The WCAC’s
written policies provide clear notice of the obligation to
request extensions of time before the due date.
As stated in
the form letter sent in this case, as of January 1, 1999,
court reporters no longer file transcripts directly with the
WCAC, but instead provide them to counsel.
Thus, attorneys
representing appellants can and should know if a transcript
will not be timely filed and are in a position to request an
extension within the allotted time.
Of course, unusual situations may arise in which an
appellant’s failure to timely request an extension might be
excused.
Where such a claim is made, evaluation of the
circumstances
is
entrusted
to
the
WCAC’s
discretion.
Appellate courts review such decisions regarding failure to
comply with procedural deadlines for an abuse of discretion.
7
Zielke v A J Marshall Co, 306 Mich 474, 477-478; 11 NW2d 209
(1943); Meyers v Iron Co, 297 Mich 629, 634-636; 298 NW 308
(1941).
As we stated in Alken-Ziegler, Inc v Waterbury
Headers Corp, 461 Mich 219, 227-228; 600 NW2d 638 (1999):
An abuse of discretion involves far more than
a difference in judicial opinion.
Williams v
Hofley Mfg Co, 430 Mich 603, 619; 424 NW2d 278
(1988). It has been said that such abuse occurs
only when the result is "'so palpably and grossly
violative of fact and logic that it evidences not
the exercise of will but perversity of will, not
the exercise of judgment but defiance thereof, not
the exercise of reason but rather of passion or
bias.'" Marrs v Bd of Medicine, 422 Mich 688, 694;
375 NW2d 321 (1985), quoting Spalding v Spalding,
355 Mich 382, 384-385; 94 NW2d 810 (1959), and
noting that, although the Spalding standard has
been often discussed and frequently paraphrased, it
has remained essentially intact.
III
In this case, the transcript was due on September 8,
2000.
an
Plaintiff did not request an extension
explanation
for
the
delay
only
reconsideration of the dismissal order.
in
his
and presented
motion
for
There, he explained
that the reporter failed to prepare the transcript by the due
date.
This explanation, however, did not excuse the failure
to timely request an extension. In view of the WCAC’s efforts
to remove the perceived “chaos” in prior practice and to
enforce timely filing requirements, we find no abuse of
discretion in this case.
As the Court of Appeals decision in Brooks noted, on a
number of occasions we have set aside dismissals that were
8
based on the failure to timely file a transcript.
Each of
those cases involved its own set of circumstances, and we do
not reconsider at this point whether, under the principles
enunciated here, we would reach the same decision in those
cases.
In any event, our peremptory orders in those cases
provide little guidance because of the limited discussion of
the facts in the orders.
Accordingly, we hold that a court reporter’s delay in
preparing a transcript does not necessarily excuse a late
filing where the appellant fails to request an extension of
time under procedures established by the WCAC.6
circumstances
of
this
case,
the
WCAC
did
not
In the
abuse
its
discretion in dismissing the appeal. We therefore reverse the
judgment of the Court of Appeals and reinstate the dismissal
order.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
6
To the extent that the reasoning in Brooks
inconsistent with our decision here, it is overruled.
9
is
S T A T E
O F
M I C H I G A N
SUPREME COURT
THOMAS KURTZ,
Plaintiff-Appellee,
v
No. 118723
FAYGO BEVERAGES, INCORPORATED,
Defendant-Appellant.
________________________________
KELLY, J. (dissenting).
A per curiam opinion is not an appropriate vehicle for
resolving the issue in this case.
Despite the WCAC's policy
regarding filing requirements, this Court has found that the
WCAC abused its discretion by dismissing cases due to late
filing of transcripts.
These were cases where the delay was
not caused by the appealing party.
See, e.g., Tomblin v MNP
Corp, 456 Mich 871 (1997); Bright v Voss Steel Corp, 454 Mich
855 (1997).
The Court of Appeals in Brooks v Engine Power
Components, Inc,1 was in accord with the orders in those
cases.
Brooks held that the WCAC abused its discretion when
it dismissed an appeal because a court reporter filed a
transcript untimely.
1
241 Mich App 56; 613 NW2d 733 (2000).
In light of this precedent, it is unclear that the
circumstances of the current untimely filing are insufficient
to excuse the delay or the failure to request an extension.
I would deny leave, allowing the matter to be resolved under
Brooks, or I would grant leave to fully consider the continued
viability of that decision.
CAVANAGH , J., concurred with KELLY , J.
2
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