Issues Becoming Moot On Appeal

• Jurisdiction: Michigan,United States,Federal
• Law Firm: Dickinson Wright PLLC
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Mr Phillip DeRosier
• Published date: 11 May 2023

Although appellate courts are generally obligated to address the issues that are properly brought before them, that is not the case when it comes to issues that have been rendered moot by subsequent developments'either in the case or in the law.¹

General Rule

As the Michigan Court of Appeals explained in B P 7 v Bureau of State Lottery, 231 Mich App 356; 586 NW2d 117 (1998), an appellate court ordinarily "will not decide moot issues." Id. at 359. "A case is moot when it presents only abstract questions of law that do not rest upon existing facts or rights." Id. "An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief." Id. The Sixth Circuit has similarly recognized that "[i]f events occur during the case, including during the appeal, that make it 'impossible for the court to grant any effectual relief whatever to a prevailing party,' the appeal must be dismissed as moot." Fialka-Feldman v Oakland Univ Bd of Trustees, 639 F3d 711, 713 (CA 6, 2011).²

The mootness doctrine applies to both factual and legal developments. In B P 7, for example, it was a statutory amendment. B P 7, 231 Mich App at 359. In Fialka-Feldman, it was the fact that a learning-disabled student challenging a university's denial of his request for on-campus housing had "completed the program and left the University with no plans of returning." Id. at 713. See also Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich App 656, 666; 939 NW2d 454 (2019) (dismissing the defendant's appeal from a judgment of foreclosure because the statutory redemption period expired while the appeal was pending).

Exception for Issues That are "Capable of Repetition, Yet Evading Review"

Courts may, however, overlook mootness if the case raises an issue that is "capable of repetition, yet evading review." Chirco v Gateway Oaks, LLC, 384 F3d 307, 309 (CA 6, 2004). For example, in Turunen v Dir of Dep't of Natural Resources, 336 Mich App 468; 971 NW2d 20 (2021) the Michigan Court of Appeals found that the plaintiff's challenge to a Department of Natural Resources ("DNR") invasive species order was not moot even though the plaintiff's eight pigs that were the subject of the order had died, because the plaintiff "continue[d] to raise and sell pigs for the main purpose that plaintiff raised and sold the eight dead ones," and thus would be subject to the potential for future DNR action. See also Franciosi v Michigan Parole Bd, 461 Mich 347, 348 n 1; 604 NW2d...