Docket 15157 | Mich. Ct. App. | Jul 25, 1973
THEISEN
v.
CITY OF DEARBORN
Michigan Court of Appeals.
James Thomson, for plaintiffs.
Joseph J. Burtell, Corporation Counsel, and Carl P. Garlow, Assistant Corporation Counsel, for defendant.
*572 Before: GILLIS, P.J., and HOLBROOK and BASHARA, JJ.
HOLBROOK, J.
The original factual situation for this case is extensively set out in Theisen v Dearborn, 5 Mich. App. 607" court="Mich. Ct. App." date_filed="1967-03-29" href="https://app.midpage.ai/document/theisen-v-city-of-dearborn-1580960?utm_source=webapp" opinion_id="1580960">5 Mich. App. 607; 147 NW2d 720 (1967). In that case the prevailing members of the Court ruled that a prior circuit court judgment, Morrison v Dearborn (Wayne County No. 299-972), was res judicata as to the claims asserted in the circuit court action then on appeal. In that appeal this writer dissented, asserting that the Morrison case was not res judicata since the court's judgment was ambiguous as to the issues of longevity pay and the proper pension formula. However, the Supreme Court affirmed Theisen, supra, by a 5 to 3 vote, saying at 380 Mich. 621, 625; 158 NW2d 483, 485 (1968):
"We disagree with our Brother's finding that the `holding by the trial court in the previous case [Morrison, supra] is ambiguous', and we agree with the trial court and the Court of Appeals that the decision in the previous case in regard to the formula determines the question of formula in the present case.
"We are remanding to allow plaintiffs' request that discovery proceedings be allowed to determine whether plaintiffs' annuity or other benefits have been properly adjusted by the defendant under the established formula."
Plaintiffs on remand to the circuit court have attempted to relitigate the pension formula. They claim that the pension ratio that is to be applied against increases in active duty pay so that pensioners will receive a corresponding equal increase in their retirement annuity is not large enough due to miscalculation of the pension formula. After again reviewing the trial judge's opinion in the *573 Morrison case, this writer remains convinced that the Morrison judgment is ambiguous and was not res judicata in Theisen, supra. However, the Supreme Court's ruling expressly restricted the scope of the remand in Theisen only to allow plaintiffs to pursue their request that discovery proceedings be allowed. This Court is, of course, bound by the instructions of the Supreme Court and therefore must deny plaintiffs' request for relief in the absence of countervailing directions from that Court.
Affirmed.
All concurred.