We filed a "stay" pending our appeal to the Michigan Court of Appeals. That didn't go over well with the plaintiff. The Court of Appeals...Dismissed this claim "for lack of jurisdiction because the order of October 29, 2007, is not a final order as defined by MCR 7.202(6)(a)(i) because it does not adjudicate all the rights and liabilities as is required by MCR... . In the Order of April 18, 2007, the trial court stated, 'following confirmation of the sale and closing, the Court will determine the distribution of the proceeds of sale, including dower interests, if any, in the proceeds.' At this point there has been no closing and no order that distributes the proceeds of the sale."
So, a final order from the court isn't final until all proceeds are distributed, title is transfered, etc.. It seemed to make sense to us to do this BEFORE it all got split up and handed over to David. Guess it didn't make sense to the "gatekeepers" of the Appeal Court.
The plaintiff was pretty pissed off. They knew we were going to go back and appeal again. They demanded an "Order that an appeal bond be set in this matter in the amount of $718,750.00." Right. And this wasn't about money??
In the end, the judge set the appeal bond at $25,000. You have to wonder at the reasoning. She had a 1/3 interest in the property. The same interest as the plainiff. So, she had to get a $25,000 bond.
More motions to convey sale occured. In a letter dated January 2, 2008 our attorney reported that "he'd attended the hearing on plaintiff's motion to conform with the court of appeals. The judge agreed with our answer that he did not have jurisdiction over this matter because jurisdiction remained exclusively with the court of appeals pending our motion for reconsideration.. Therefore, the matter will be held in abeyance."
He went on to say, "In speaking with Judge Borchard, it appears that he will do whatever he can to insure that an appeal goes forward before any action is taken to convey the property. He also realizes that great prejudice would be created if the property were conveyed and then his decisions were reversed by the court of appeals. He agrees that the appeals process should be exhausted before any further action is taken by him in the trial court."
Plaintiff filed an answer /response to our motion for reconsideration of the Michigan Court of Appeals dismissal for lack of jurisdiction.
"Although Mr. Sturtz has filed this answer with the Michigan Court of Appeals, I assume that the Court of Appeals will return the answer to him because there is no provision in the court rules that allows for him to file an answer to our motion. The Michigan Court of Appeals is very strict in this regard. Where there is no provision in a court rule for filing an answer, the Court of Appeals will not consider the pleading and, in fact, simply returns the pleading to the filing party without considering it." Phil must have skipped the "procedural" part of his legal training. He kept doing this. Maybe he was just running up his bill?
This was all rather boring. Motions and more motions... mounting legal costs and on and on. Meanwhile, the plaintiff was pushing to get "his" cottage. From our attorney, "I am enclosing for your file a re-notice of the motion to confirm sale, convey real estate and payment of costs and expense that rescheules the hearing date from February 4, 2008 to February 11, 2008 at 9:00 a.m..
I note on the notice that Mr. Sturtz has still noticed the wrong motion. As we previously discussed, the judge granted the motion several months ago. That is the order from which we are appealing.
I am preparing an application for leave to appeal to the Michigan Court of Appeals that will need to be filed this week before the Monday hearing. With the filing of the application, I would assume that the hearing on the motion will be cancelled because the trial court would not have jurisdiction over the matter."
And so it went. Back and forth, hearings rescheduled, cancelled, re-noticed, etc. etc. The final gist of all of this??? We jumped through all the hoops and landed in the hands of the Michigan Court of Appeals once again. Their backlog is such that it would be months if not years to go all the way through with this. Stay tuned.. we had a "time out" of sorts. Nice for us. Frustrating to the others. Poor Stu.. he had to wait even longer in hopes of getting some money. Awwwwwwww.