Luscombe v. Shedd's Food Products Corp.

• Decision Date: 08 August 1995
• Docket Number: Docket No. 148437
• Citation: 539 N.W.2d 210,212 Mich.App. 537
• Parties: William LUSCOMBE, Plaintiff-Appellant, v. SHEDD'S FOOD PRODUCTS CORPORATION, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 210

539 N.W.2d 210

212 Mich.App. 537

William LUSCOMBE, Plaintiff-Appellant, v. SHEDD'S FOOD PRODUCTS CORPORATION, Defendants-Appellees.

Docket No. 148437.

Court of Appeals of Michigan.

Submitted June 21, 1995, at Detroit.

Decided August 8, 1995, at 9:05 a.m.

Released for Publication Oct. 10, 1995.

James C. Barnes, Jr., Southfield, for plaintiff.

Plunkett & Cooney, P.C. by Dennis J. Clark, Detroit, for defendants.

Before MacKENZIE, P.J., and GRIBBS and CLULO, ^* JJ.

MacKENZIE, Presiding Judge.

Plaintiff appeals as of right from an opinion and order denying his motion to set aside a jury verdict of no cause of action. We affirm.

This is the second appeal in this case. The issue before us is whether plaintiff is entitled to have a jury verdict set aside for the reason that the trial commenced before the record was returned by this Court to the circuit court following the prior appeal.

The case was previously before this Court in an appeal from an order granting defendants' motion for summary disposition of all eight counts of plaintiff's complaint. In an unpublished opinion per curiam, decided April 22, 1991 (Docket No. 113469), this Court affirmed the order with respect to four counts and reversed with respect to four counts. Defendants filed a motion for rehearing, which was denied by this Court on July 22, 1991. The 21-day period for filing an application for leave to appeal in the Supreme Court expired on August 12, 1991. The remittitur of record from this Court indicates that the lower court record, together with a certified copy of the judgment, were returned to the circuit court on August 21, 1991. A circuit court document indicates that the record was received on August 27, 1991.

The jury trial on the remaining four counts of plaintiff's complaint commenced on August 19, 1991, and other pretrial proceedings were conducted before that date. Specifically, following the release of this Court's opinion on April 22, 1991, the trial court issued an order on May 21, 1991, scheduling a settlement conference for June 17, 1991, and setting trial for August 19, 1991. On July 19, 1991, the trial court entered an order substituting defense counsel. On July 31, 1991, the trial court entered an order denying a defense motion, which was opposed by plaintiff, to adjourn the scheduled trial. A settlement conference was also conducted on August 9, 1991.

As noted above, a jury trial began on August 19, 1991. Defendant Lever Brothers Company was dismissed at trial by agreement of the parties. Defendant Shedd's Food Products Corporation moved for a directed verdict, which was granted on one count. On August 28, 1991, the jury returned its verdict of no cause of action in favor of Shedd's with regard to the remaining counts.

Plaintiff contends that the trial court was without jurisdiction to conduct the proceedings summarized above until the return of the file from the Court of Appeals.

The applicable law was summarized by this Court in Swickard v. Wayne Co. Medical Examiner, 196 Mich.App. 98, 100-101, 492 N.W.2d 497 (1992):

As a general rule, appellate courts do not retain jurisdiction of cases after issuing opinions and orders in pursuance thereof. People v. Kennedy, 384 Mich 339, 342; 183 NW2d 297 (1971). The court rules governing the appellate courts contemplate return of the original record to the court from which the appeal was taken whether the appeal results in affirmance, reversal, or remand for a specified purpose. Id. Upon return of the record, the lower court is again vested with jurisdiction over the cause. Id. at 343, 183 N.W.2d 297. See, also, People v. Bright, 126 MichApp 606, 610; 337 NW2d 596 (1983); People v. Pawelczak, 125 MichApp 231, 241; 336 NW2d 453 (1983). When the mandate of an appellate court is filed in the lower court, that court reacquires the jurisdiction it lost by the initiation of the review proceedings. Id.

Kennedy, supra, involved the question whether the trial court had jurisdiction to rule on a motion after an appeal to this Court, when the decision of this Court had not specifically remanded the case back to the trial court. The Supreme Court explained:

As a general rule, appellate courts do not retain jurisdiction of causes after handing down opinions and entry of orders in pursuance thereof.

The rules governing both this Court and the Court of Appeals contemplate return of the original record to the court from which the appeal was taken. This procedure obtains whether the appeal results in affirmance, reversal or remand for a specified purpose.

Under our former practice, this transmission of the original record to the lower court was called the remittitur. Reynolds v. Newago [Newaygo] Circuit Judge, 109 Mich 403; 67 NW 529 (1896). In other jurisdictions, it is sometimes referred to as a procedendo or simply the mandate.

Our General Court Rules of 1963 use the terms "order" and "final process."

Under whatever name, it is axiomatic that a court speaks through its orders. Appellate courts can, and often do, enter orders directly affecting the rights of the parties. They can and often do enter orders which completely dispose of the litigation, leaving nothing for the trial court to do upon re-transmission of the record.

But every final order on appeal unless otherwise expressly provided sets in motion the clerical process of re-transmission to the lower court.

Upon return of the record, the lower court is again vested with jurisdiction over the cause. Dep't of Conservation v. Connor, 321 Mich 648; 32 NW2d 90 (1948).

When the mandate of an appellate court is filed in the lower court, that court reacquires the jurisdiction which it lost by the taking of the review proceedings. 5 AmJur2d, Appeal and Error, § 990, p 417. [384 Mich. at 342-343, 183 N.W.2d 297.]

See also People v. George, 399 Mich. 638, 250 N.W.2d 491 (1977) (circuit court jurisdiction revests upon Supreme Court's denial of application for leave to appeal a decision of this Court or, if leave is granted, upon the Supreme Court's issuance of a final order or judgment).

Under these authorities, the circuit court in this case did not reacquire jurisdiction until this Court's remittitur was filed. The trial court therefore erred in conducting proceedings on remand from this Court before the record was returned.

We must next decide the effect of the court's error. Plaintiff contends that the error requires that the case be remanded for a new trial because the actions of the circuit court before the return of the record were void for want of subject-matter jurisdiction. We do not agree. We conclude that, in the absence of any objection, the error was harmless.

A court's subject-matter jurisdiction is determined only by reference to the allegations themselves, not the subsequent proceedings. In re Waite, 188 Mich.App. 189, 199, 468 N.W.2d 912 (1991). Thus, where it is apparent from the allegations of a complaint that the matter alleged is within the class of cases in which a particular court has been empowered to act, subject-matter jurisdiction is present. Id. Any subsequent error in the proceedings is only error in the "exercise of jurisdiction," as distinguished from the want of jurisdiction in the first instance. Id. Although the want of subject-matter jurisdiction voids a...