Appellees Brief - MLive.com

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DIBC Filing Disposition RECEIVED by Michigan Court of Appeals 1/27/2012 7:20:43 PM COA Case No. 296567—Emergency Application for Leave to Appeal MSC Case No. 140991— Emergency Application for Leave to Appeal COA Case No. 302330—Delayed Application for Leave to Appeal COA Case No. 307306—Application for Leave to Appeal COA Case No. 307382—Claim of Appeal Application denied for ―failure to persuade the Court of the need for immediate appellate review.‖ (3/17/10 Order) Application denied because the Court was ―not persuaded that the questions presented should be reviewed by this Court.‖ (5/28/10 Order) Application denied for ―failure to persuade the Court of the need for immediate appellate review.‖ (3/18/11 Order) Application denied for ―failure to persuade the Court of the need for immediate appellate review.‖ In addition, ―[o]n the Court‘s own motion, Issue II of the application, which pertains to the trial Court‘s February 1, 2010, order is STRICKEN.‖ (1/10/12 Order) Dismissed for lack of jurisdiction because, inter alia, ―even if the February 1, 2010, order were considered the final order as defined in MCR 7.202(6)(a)(i), the appeal is not timely with respect to this order. See MCR 7.204(A).‖ (12/20/11 Order) In addition, DIBC twice attempted to remove this case to federal district court, prompting a federal district judge to describe DIBC as ―the party who has devised the most creative schemes and maneuvers to delay <strong>com</strong>pliance with a court order.‖ Mich. Dep’t of Transp. v Detroit Int’l Bridge Co., No. 10-13767 (11/5/10 Op. & Order, p.3) (Appendix 15). This Court lacks jurisdiction to review the February 1, 2010 opinion and order. An appeal of right from a final judgment must be taken within 21 days after 39
the order enters. MCR 7.204(A)(1)(a). This time limitation is jurisdictional. MCR 7.204(A). An application for leave to appeal must also be filed within 21 days after the order enters. MCR 7.205(A)(1). A party may also file a delayed application for late appeal, but it must do so within 12 months of the order‘s entry. MCR 7.205(F)(3). A challenge to the February 1, 2010 order, whether by right or by application, is thus untimely, as that challenge needed to be filed by March 1, 2010. The current RECEIVED by Michigan Court of Appeals 1/27/2012 7:20:43 PM application is untimely by over 22 months. Moreover, a delayed application needed to be filed no later than February 1, 2011, and Appellants are nearly a year tardy on that front too. As this Court has previously determined, it lacks jurisdiction to consider the merits of the trial court‘s February 1, 2010 order, because any challenge to that order is untimely at this juncture. Those portions of Appellants‘ brief challenging that order should be stricken for want of jurisdiction. See 1/10/12 Order, COA Case No. 307306; 12/20/11 Order, COA Case No. 307382. Finally, setting aside the jurisdictional issue would not alter the out<strong>com</strong>e: [I]t is settled that issues previously raised and addressed by this Court in an interlocutory appeal are binding on us in subsequent appeals, the facts remaining materially the same. Marysville v Pate, Hirn & Bogue, Inc, 196 Mich. App. 32, 33; 492 N.W.2d 481 (1992); People v Freedland, 178 Mich. App. 761, 770; 444 N.W.2d 250 (1989). Here, it is undisputed that the facts remained materially the same throughout this lengthy dispute. [Int‘l Union, United Auto. Aerospace & Agric. Implement Workers, Local Union 6000 v. State, 211 Mich App 20, 27; 535 NW 2d 210 (1995)] Thus, even if the Court had jurisdiction to review the merits of the February 1, 2010 order, it would be bound by prior panels‘ rulings. 40
Page 1 and 2: STATE OF MICHIGAN IN THE COURT OF A
Page 3 and 4: Argument ..........................
Page 5 and 6: INDEX OF AUTHORITIES Page Cases Arm
Page 7 and 8: Rules MCR 7.205(f)(3) .............
Page 9 and 10: the January 12, 2012 order is not a
Page 11 and 12: not act as both accuser and fact fi
Page 13 and 14: with the February 1, 2010 order or
Page 15 and 16: (3) barring DIBC from raising any f
Page 17 and 18: On October 29, 2009 MDOT filed a mo
Page 19 and 20: and satisfy the February 1, 2010 Or
Page 21 and 22: the Court‘s February 1, 2010 Orde
Page 23 and 24: 3. DIBC’s direct efforts to avoid
Page 25 and 26: the action in federal court. Consid
Page 27 and 28: took the motions under advisement.
Page 29 and 30: Order. After hearing oral argument,
Page 31 and 32: DIBC‘s schemes fail, however, as
Page 33 and 34: DIBC‘s claim that MDOT‘s suppor
Page 35 and 36: granted summary disposition concern
Page 37 and 38: The timetable lists, for example, t
Page 39 and 40: surety. (7/7/11 Tr., pp. 154). Mr.
Page 41 and 42: On August 11, 2011, the Court issue
Page 43 and 44: site plan sheets C-1 6 in Exhibit E
Page 45 and 46: provisions of Section 8 of the Gate
Page 47 and 48: The Court has considered the eviden
Page 49: was sanctioned and again ordered to
Page 53 and 54: protect fraud, or defend crime, the
Page 55 and 56: 361, 366, 55 L Ed 771, 31 S Ct 538
Page 57 and 58: Notice was again given in the Novem
Page 59 and 60: On appeal, the corporate officials
Page 61 and 62: In re Meizlish was a criminal conte
Page 63 and 64: construction (or a joint venture fo
Page 65 and 66: After careful review it appears tha
Page 67 and 68: preponderance of the evidence stand
Page 69 and 70: This Court has previously determine
Page 71 and 72: B. Analysis The corporate officials
Page 73 and 74: Finally, the corporate officials cl
Page 75 and 76: The corporation officials‘ allega

Appellees Brief - MLive.com

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