Effect Of A Change In The Law On Appeal

• Published date: 01 June 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Dickinson Wright PLLC
• Author: Mr Phillip DeRosier

On occasion, a development in the law while a case is pending on appeal may present an additional argument to raise. Although the general rule is that an appellant cannot raise issues for the first time on appeal, Michigan and federal courts have recognized an exception for changes in the law.

As a general matter, an issue that is not preserved in the trial court will not be considered on appeal.¹ As the Michigan Supreme Court explained in Walters v Nadell, 481 Mich 377; 751 NW2d 431 (2008), "[u]nder our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court," such that "a failure to raise an issue waives review of that issue on appeal." Id. at 386. See also In re Forfeiture of Certain Personal Property, 441 Mich 77, 84; 490 NW2d 322 (1992) ("Issues and arguments raised for the first time on appeal are not subject to review."); Duray Dev, LLC v Perrin, 288 Mich App 143, 149; 792 NW2d 749 (2010) (explaining that to preserve an issue for appeal, a party must specifically raise it before the trial court). The rule is the same in federal court. See American Bank, FSB v Cornerstone Community Bank, 733 F3d 609, 615 (CA 6, 2013) ("For the first time on appeal, Cornerstone adds several new theories . . . . But this is too late and too little. It is too late because Cornerstone did not raise these arguments below. Cornerstone thus forfeited the arguments.").

At the same time, however, the Supreme Court has said that "the preservation requirement is not an inflexible rule; it yields to the necessity of considering additional issues when necessary to a proper determination of a case." Klooster v City of Charlevoix, 488 Mich 289, 310; 795 NW2d 578 (2011) (citations and internal quotations omitted). The Sixth Circuit expressed the same view in Golden v Kelsey–Hayes, Co, 73 F3d 648, 657–658 (CA 6, 1996):

We will deviate from [the rule requiring issues to be raised in the trial court] only in exceptional circumstances, such as when following the rule would cause a miscarriage of justice, and particularly where the question is entirely legal and has been fully briefed by both parties. We have also made exceptions when the proper answer is beyond doubt, no factual determination is necessary, and injustice might otherwise result.

The exception permitting issues to be raised for the first time on appeal appears to include a change in the law affecting the outcome of the case.² In Morris v Radley, 306 Mich 689; 11 NW2d 291...