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The Michigan Supreme Court has re-confirmed "equitable tolling" for delayed applications for leave to appeal in the Court of Appeals in Beavers v Barton Malow (on Remand) (Docket 269007). In that case, the appellant's case had been previously dismissed for failure to timely file appellant's brief and the court reporter certificate. The appellant filed an application for leave to the Supreme Court, which was denied.

                By the time of the denied application in the Supreme Court, the one-year time period for delayed applications under MCR 7.205(F)(3) had already passed. However, appellant filed a delayed application in the Court of Appeals, seeking relief under the doctrine of equitable tolling while his case had been previously pending in the Court of Appeals and Supreme Court. The Court of Appeals rejected his argument and appellant filed a second application in the Supreme Court, this time on the equitable tolling issue.

              The Supreme Court reversed the Court of Appeals on the equitable tolling issue and remanded the case to consider the application. (Order issued Feb. 1, 2008, Supreme Court Docket 133294)

               Although the Supreme Court's order allowed the filing of a delayed application for leave beyond the one-year filing period because equitable tolling applied, the Supreme Court wants to consider a rule change. Time will tell whether the rule change will incorporate the common law equitable tolling provision, or clarify a party's inability to rely on equitable tolling.

Update: In March 2009, the Michigan Supreme Court amended MCR 7.205 for delayed applications, partially incorporating a tolling provision for jurisdictional dismissals, now seen at MCR 7.205(G)(5):

• Notwithstanding the 6-month limitation period otherwise provided in subrule (G)(3), leave to appeal may be granted if a party’s claim of appeal is dismissed for lack of jurisdiction within 21 days before the expiration of the 6-month limitation period, or at any time after the 6-month limitation period has expired, and the party files a late application for leave to appeal from the same lower court judgment or order within 21 days of the dismissal of the claim of appeal or within 21 days of denial of a timely filed motion for reconsideration. A party filing a late application in reliance on this provision must note the dismissal of the prior claim of appeal in the statement of facts explaining the delay.