Summary
In Totman v Royal Oak School Dist, 135 Mich. App. 121, 126; 352 N.W.2d 364 (1984), citing GCR 1963, 13, this Court found that, although the plaintiff's failure to file a brief as required by GCR 1963, 701.9(a) was an error resulting in a defect in the proceedings, it did not justify the harsh penalty of dismissal of plaintiff's claim of appeal since plaintiff's adoption of the dissenting opinion of the board of review served the purpose behind the requirement of an appellate brief.
Summary of this case from Cody v. Wickman, Inc.Opinion
Docket No. 73963.
Decided June 4, 1984.
Frederick H. Totman, in propria persona. Goodenough, Smith May (by John A. Forest), for Royal Oak School District.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Catherine M. Fleming, Assistant Attorney General, for Employment Security Commission.
Frederick Totman appeals as of right from an Oakland County Circuit Court order dismissing his appeal from the Michigan Employment Security Commission for failure to file a brief. Both below and on appeal, appellant has proceeded in propria persona.
Appellant was employed by the School District of Royal Oak from December 13, 1971, to September 11, 1981. On September 14, 1981, he filed for unemployment benefits, indicating that his layoff was for lack of work. MESC disqualified him, finding that his unemployment was due to a labor dispute within the meaning of § 29(8)(a) of the Michigan Employment Security Act, MCL 421.29(8)(a); MSA 17.531(8)(a). Following a hearing, the disqualification was affirmed by the referee on December 10, 1982. In an opinion dated April 29, 1983, the board of review affirmed, with one member dissenting.
On May 19, 1983, appellant filed a timely claim of appeal with the Oakland County Circuit Court. Appellee School District of Royal Oak filed an ex parte motion for an order to show cause why appellant's appeal should not be dismissed pursuant to GCR 1963, 701.13(b) for failure to file a brief as required by GCR 1963, 701.9(a). Appellant answered appellee's motion, arguing that the appeal should not be dismissed because, under GCR 1963, 706.2(a), a timely filing of a claim of appeal constitutes the taking of an appeal and because GCR 1963, 706.2(d) states that appeals from the board of review are heard by the circuit court on the certified record and the certified record contained a dissenting opinion which appellant adopted as his brief in the circuit court. The trial judge apparently disagreed and on September 7, 1983, entered an order dismissing appellant's appeal for failure to timely file his brief.
Appellant appealed as of right to this Court. His brief on appeal contained two issues. The first was whether the circuit court erred in dismissing his appeal. The second was whether the decision of the board of review was supported by substantial evidence on the record. Appellees filed a motion to strike the second question in appellant's brief since the circuit court had not reviewed the merits of the board's decision. This Court agreed, granting appellees' motion to strike on January 3, 1984. The only issue on appeal is whether the circuit court abused its discretion by dismissing appellant's appeal for failure to file a brief.
Section 38 of the Michigan Employment Security Act, MCL 421.38; MSA 17.540, provides for circuit court review of appeal board decisions and that such review be "by any method permissible under the rules and practices of the circuit courts of this state". MCL 421.38(1); MSA 17.540(1). GCR 1963, 706, which governs appeals under the Michigan Employment Security Act, provides in part:
"(d) The appeal is heard by the circuit court on the certified record. Briefs and oral argument are governed by sub-rules 701.9-701.11." GCR 1963, 706.2(d).
Under this section, GCR 1963, 701.9 governs the filing and service of briefs. GCR 1963, 701.9(a) provides that:
"(a) Within 20 days after the trial court clerk notifies the parties that the record has been sent to the circuit court, the appellant shall file a brief in the circuit court and serve it on the appellee. Appellant shall notify the trial court of the filing. The appellee may file and serve a reply brief within 20 days after the appellant's brief is served on him. Briefs must comply with GCR 1963, 813 and 814."
In the instant case, appellant did not file a brief, as required by GCR 1963, 701.9(a). He argued below in his answer to the motion to show cause, and now argues on appeal, that his appeal should not be dismissed for two reasons. First, because GCR 1963, 701.9(a) is merely advisory and the filing of a brief was discretionary. Second, since GCR 1963, 706 states that the appeal is heard by the circuit court on the certified record and the certified record contained a dissenting opinion, this dissent should serve as appellant's brief on appeal in the circuit court. Appellees argue that, since compliance with the court rules is mandatory, the circuit court did not abuse its discretion by dismissing the appeal.
We disagree with appellant's assertion that the requirement of briefs is discretionary. The clear language of GCR 1963, 701.9(a) states that "appellant shall file a brief in the circuit court and serve it on the appellee". However, the decision whether to dismiss an appeal for failure to comply with this requirement is left to the circuit court's discretion. See Kassin v Arc-Mation, Inc, 94 Mich. App. 520, 523-524; 288 N.W.2d 413 (1979), app dis, 411 Mich. 1065 (1981). We agree with appellant that the dismissal of his appeal was an abuse of discretion.
On numerous occasions appellate courts have held that failure to file an appellate brief is a waiver of the right to participate in the appeal and justifies dismissal. See Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959); Higgins v Higgins, 351 Mich. 214, 215; 88 N.W.2d 292 (1958); Anchor Bay Concerned Citizens v Anchor Bay Bd of Ed, 55 Mich. App. 428, 430-431; 223 N.W.2d 3 (1974). Appellate briefs are required so that the reviewing court does not have to search the record to discover whether error has been committed and ascertain the authority to support the alleged error. Mitcham, supra; Couple-Gear Freight Wheel Co v Lake Shore M S R Co, 196 Mich. 429, 433-434; 163 N.W. 25 (1917). In the instant case, the certified record contained a statement of facts which could sufficiently inform the court of the underlying facts and issues on appeal. The dissenting opinion relied on by the appellant contains statutory and case citations as well as a legal argument why the decision of the referee should be reversed. The circuit court would not be required to search the record for the pertinent facts or authority in support of appellant's position.
We believe that appellant adequately showed cause why his appeal should not be dismissed and complied with the requirement of GCR 1963, 701.9(a) by adopting the dissenting opinion as his brief. The circuit court's order dismissing his appeal was a harsh penalty in light of the fact that appellant was proceeding in propria persona. We agree with the appellees that a person acting in propria persona should be held to the same standards as members of the bar. However, in the instant case, appellant's adoption of the dissenting opinion served the purpose behind the requirement of an appellate brief. Had appellant retyped the dissenting opinion and labelled it "BRIEF" it would have fully complied with the requirements of the rule. His failure to do so constitutes an error on his part resulting in a defect in the proceedings but the general court rules wisely contemplated that litigants and lawyers might make such errors without suffering the cataclysmic consequence of having a case dismissed without a hearing on the merits:
"These rules are to be construed to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties." GCR 1963, 13.
See Rockwell v Vandenbosch, 27 Mich. App. 583; 183 N.W.2d 900 (1970).
This idea of allowing minor errors to have no adverse consequences finds its counterpart in the concept of harmless error as applied to trial judges. Not every mistake made by a trial court requires reversal, especially where the error is slight and the prejudice is minimal. There is no right to a perfect trial — only a fair trial is mandated. See People v Herrera, 12 Mich. App. 67; 162 N.W.2d 330 (1968). Indiana Michigan Electric Co v Miller, 19 Mich. App. 16; 172 N.W.2d 223 (1969), lv den 383 Mich. 781 (1970). Litigants and lawyers are entitled to similar treatment. Although the trial judge was correct in stating that appellant had erred, we, in the exercise of our appellate function, find that the punishment was out of proportion to the crime.
Reversed and remanded for a hearing on the merits at which the dissenting opinion of the board of review shall be treated as appellant's brief. We express no opinion on the merits of appellant's case and we do not retain jurisdiction.
No costs, a public question being involved.