FLTF Files Motion to Dismiss and Opposition

Claim of Appeal vs. Application for Leave to Appeal

Under Michigan law, a litigant has the right to request a higher court to review errors of a lower court. On July 11, 2024, Heron Cove Association (HCA) filed a request asking the Michigan Court of Appeals to review Judge Beale’s decision. HCA filed both a "Claim of Appeal" and an "Application for Leave to Appeal" in the Michigan Court of Appeals.

A “Claim of Appeal” asserts an appellant has the right to have the Court of Appeals review the decision of a lower court (“right to an appeal”). In such case, the Court of Appeals must hear the case.

In contrast, where a lower court decision cannot be appealed as a matter of right, an appellant can ask permission for the Court of Appeals to invoke its jurisdiction and review a lower court’s decision. In such instances, the Court of Appeal has discretion whether or not to hear the case. This process requires the submission of an “Application for Leave” (i.e. permission) to invoke the jurisdiction of the Court of Appeals.

FLTF maintains that because the matter before Judge Beale was an administrative appeal of the counties’ decision following a special assessment hearing, HCA may only seek review by application to the Court of Appeals. On July 24th, we filed our answer in opposition of HCA’s Application for Leave to Appeal. In connection with HCA’s Claim of Appeal, we filed a motion to dismiss. In both instances, we requested immediate consideration by the Court of Appeals.

HCA Claim of Appeal --> FLTF Filed Motion to Dismiss

HCA Application for Leave to Appeal --> FLTF Filed Answer in Opposition

What Are the Next Steps With HCA’s Appeal?

In response to our Answer in Opposition of HCA’s Application for Leave to Appeal, the court rules permit HCA to submit a reply within 21 days. As noted, we submitted motions seeking immediate consideration and we hope decisions will be made on an expedited basis.

In response to our motion to dismiss HCA’s Claim of Appeal, unless expedited by the Court of Appeals, HCA has 21 days to respond.

What About the Federal Lawsuits?

In March, while the administrative appeal of the lake level special assessments was pending, HCA filed two separate lawsuits against the counties and FLTF. The counties removed them to federal court and the cases were assigned to Judge Ludington of the United States District Court, Eastern District. Following HCA’s Motion to Disqualify Judge Ludington, on July 17, Judge Ludington recused himself and both lawsuits were reassigned to Federal Judge Leitman. On July 24th, HCA filed a motion in opposition to FLTF’s Motion to Expedite and Dismiss both cases.