Sometimes the Best Defense is a Good Offense—Even on Appeal

Sometimes the Best Defense is a Good Offense—Even on Appeal


Malpractice defendants often find themselves with a lot of company. When a transaction seems to go awry, aggrieved plaintiffs may sue every professional involved—accountants, lawyers, consultants, and their respective firms.

With multiple defendants, there’s a possibility that the court will issue multiple orders resolving the plaintiff’s claims. For example, the court might grant summary disposition on the claims against the accountants in May, against the lawyers and their firms in July, and against the consultants in September.

The last order resolving the plaintiff’s claims doesn’t always end the litigation. There may be other issues on the docket—outstanding motions regarding sanctions or fees, for example. In fact, a trial court may designate an order as “final,” only to issue subsequent orders on ancillary issues.

That’s where things get messy. Typically, a plaintiff has to file a claim of appeal within a certain time after entry of the order at issue. Does the plaintiff need to file an application from each of these orders? Just one? Does the plaintiff have to wait until the court officially closes the case?

These issues matter because the deadline for filing a claim of appeal is jurisdictional. If the plaintiff doesn’t appeal from the right order in time, he or she may lose the right to appeal altogether.

In re Louis S. Basso Jr. Revocable Living Trust (Michigan Court of Appeals Docket No. 345962) illustrates these principles. After the trial court dismissed one of the defendants, a Collins Einhorn client, all the other defendants filed similar motions and received summary disposition. Under the Michigan Court Rules, the order dismissing the plaintiff’s claims against the last remaining defendant was the final order—the one that established appellate jurisdiction. But the plaintiff waited until the trial court marked an administrative, post-judgment order as “final” to file her appeal. Unfortunately for the plaintiff, that “final” designation has no significance for jurisdictional purposes.

When the case went to the Court of Appeals, one of the defendants (represented by Collins Einhorn) filed a motion to dismiss for lack of jurisdiction, which the other defendants joined. The Court of Appeals agreed with the defendant’s jurisdictional analysis and dismissed the plaintiff’s appeal. So a comparatively brief analysis of some byzantine jurisdictional issues ended the case and prevented a long, expensive appeal.

What This Means for Attorneys

When a malpractice case moves to an appellate court, don’t jump right to the substantive legal issues. Don’t assume the court’s initial jurisdictional analysis is correct. And don’t assume an order marked “final” is really the final order. Taking the time to analyze the relevant court rules—all those intricate rules of appellate jurisdiction—can lead to a favorable, case-ending decision.

Have questions or looking for further information? Contact one of our attorneys.