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. 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.
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 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.