In Re Loose

538 N.W.2d 92, 212 Mich. App. 648

• Court: Michigan Court of Appeals
• Decided: August 15, 1995
• Docket: Docket 180168
• Status: Published

Opinions

ON REMAND

Before: Marilyn Kelly, P.J., and Connor and Taylor, JJ.

Taylor, J.

We review this case pursuant to an order of remand by the Supreme Court. In re Loose, 447 Mich 904 (1994). The order of remand directed us to reconsider our earlier holding, In re Loose, 201 Mich App 361; 505 NW2d 922 (1993), in light of In re Payne, 444 Mich 679; 514 NW2d 121 (1994). We affirm our earlier decision reversing the decision of the circuit court.

The facts of this case were set forth in our earlier opinion. The essence of this Court’s earlier decision was the interpretation, as a matter of law, of a collective bargaining agreement. Loose, 201 Mich App 366. The issue was framed in the context of a collective bargaining agreement that provided for automatic resignation in the event an employee is absent for five or more consecutive days without notifying the employer, Wayne County, of the reason for the absence. Id. Respondent Wayne County terminated Ms. Loose pursuant to this provision because, in its view, she had been absent without providing notice concerning the reason for her absence for five or more days. At a hearing with respect to this issue, the Wayne County Civil Service Commission found that the county had "never received sufficient notification satisfying the reason for her absence,” and thus, the termination was in accord with the contract. The trial court, however, found that the commission had committed a clear error of law in interpreting the collective bargaining agreement to require sufficient notice. The trial court reasoned that the clear and unambiguous language of the contract required only notice, not sufficient notice of the reason for her absence.¹

On appeal, this Court, handling the issue as a question of law, disagreed with the trial court that the commission made a clear error of law. Id. Our decision affirmed the axiomatic doctrine that construction of an unambiguous and unequivocal contract is a question of law; however, we concluded that the notice provision was ambiguous. Id. at 366-367. Pursuant to this conclusion of ambiguity, we construed the contract to ascertain the intent of the parties and found that "[u]nder the agreement’s terms, the notice that must be given to justify an absence from work must be 'sufficient notice.’ ” Id. at 367. Accordingly, we held that we disagreed with the trial court that the commission made a clear error of law._ _

In In re Payne, the Supreme Court addressed "the question of the standard of review of the factual findings of a municipal civil service commission.” 444 Mich 682-683 (opinion by Boyle, J.). A majority of the justices held that factual findings should be accepted by a reviewing court only if supported by substantial evidence. Id. at 683. The Payne decision does not address the standard of review of anything other than factual matters. Because our prior decision in Loose did not involve a disputed issue of fact, Payne poses no conflict with our earlier holding and is in harmony with it.

Payne is consistent with our reasoning in the prior decision in this case, and the Supreme Court remanded this case only for reconsideration in light of In re Payne. Under the well-established doctrine of the law of the case, this Court may not reconsider its previous decision by addressing the issue raised in the amicus curiae brief.

In discussing the doctrine of the law of the case and its application in such a situation, our Supreme Court, in Johnson v White, 430 Mich 47, 52-53; 420 NW2d 87 (1988), stated:

As a general rule, an adjudication on an issue in the first appeal is the law of the case in all subsequent appeals in which the facts are substantially the same. The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on a rehearing.

Where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court. Rulings of the intermediate appellate court, however, remain the law of the case, insofar as they are not afiected by the opinion of the higher court reviewing the lower court’s determination. [Citations omitted.]

The doctrine of the law of the case also was addressed recently by this Court in Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559-560; 528 NW2d 787 (1995), where we held:

The doctrine of law of the case holds that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Poirier v Grand Blanc Twp (After Remand), 192 Mich App 539, 546; 481 NW2d 762 (1992). Thus, a decision of an appellate court is controlling at sill subsequent stages of the litigation as long as it is unaffected by a higher court’s opinion. Johnson v White, 430 Mich 47, 53; 420 NW2d 87 (1988). Further, a question of law decided by an appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain materially the same. Muilenberg v Upjohn Co, 169 Mich App 636, 641; 426 NW2d 767 (1988). Indeed, this rule pertains without regard to the correctness of the prior determination. Id. The doctrine applies even if there has been an intervening or contemporaneous change in the law. People v Russell, 149 Mich App 110, 117-118; 385 NW2d 613 (1985). The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing. Muilenberg, supra at 641; Johnson, supra.

Accordingly, the current state of the law is that when the Supreme Court remands a case to this Court for reconsideration in light of a particular decision, this Court is not free to reopen the whole matter and, in fact, lacks jurisdiction to reverse itself with respect to issues unrelated to the focus of the remand. Johnson, supra. Furthermore, the remanding court need not, in each and every case, expressly state the limits of what the lower court can consider, because it must assume that the lower court has knowledge of, and will adhere to, the established law of this state with regard to the scope of review on remand. Thus, even if this Court’s earlier decision was erroneous, as amicus curiae suggests, the issue cannot even be considered by us given the order of remand under which we proceed. The peril inherent in the approach the dissent would adopt was outlined well in Bennett v Bennett, 197 Mich App 497, 500; 496 NW2d 353 (1992). "Clearly the law-of-the-case doctrine has no usefulness if it is only applied when a panel of this Court agrees with the decision reached by a prior panel.”

We note also that Judge Kelly’s position in this case is puzzling in light of her recent decision in Int’l Union, UAW v Michigan, 211 Mich App 20, 24; 535 NW2d 210 (1995), where with regard to the doctrine of the law of the case she stated:

The doctrine applies to questions specifically determined in a prior decision and to questions necessarily determined to arrive at the decision.

In this case, the questions raised by amicus curiae were questions of law that specifically were decided in our prior decision and necessarily were determined to arrive at that decision. Therefore, we consider Judge Kelly’s discussion of the law of the case in Int’l Union to be correct and controlling, and in accord with our cited authorities.

In conclusion, because this Court’s earlier published opinion, because of remand, has no precedential effect, we once again reverse the decision of the trial court.

Connor, J., concurred.

1 The Civil Service Commission found the county supported its position:

[T]he September 14, 1982 note from Dr. Hardy’s office (received September 20, 1982) is insufficient evidence for not reporting to work from September 20,1982, until her admission to the hospital on October 28, 1982. The collective bargaining agreement provides that automatic resignation shall occur when an employee is absent for five or more consecutive work days without notification to the Employer as to the reason for said absence. The August 24, 1982 examination by her doctor established that she was fit to return to work. The Employer never received sufficient notification after that satisfying the reason for her absence. Since there was no communication from Ms. Loose, the Commission determined that the Appointing Authority proceeded correctly in determining that Ms. Loose was absent without leave. [Emphasis added.]

The collective bargaining agreement required that the employer be notified as to the reason for the absence. We believe the record supports the commission’s finding that there was no communication from Ms. Loose and that the letters from the physician were not sufficient to provide notification as to the reason for her absence from work from September 20, 1982, until October 28, 1982. Therefore, the notice was deficient (not sufficient) because the employee did not notify the employer as to the reason for her absence, and the letter from Dr. Hardy did not notify the employer as to the reason for her absence from September 20, 1982, through October 28, 1982.