William Mark Reidenbach v. City of Kalamazoo ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM MARK REIDENBACH, FOR PUBLICATION
February 26, 2019
Plaintiff-Appellant, 9:10 a.m.
v No. 340863
Michigan Compensation
Appellate Commission
CITY OF KALAMAZOO, LC No. 14-000044
Defendant-Appellee.
Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE. J.
Plaintiff, William Mark Reidenbach, appeals by leave granted the order of the Michigan
Compensation Appellate Commission (MCAC) affirming its magistrate’s rulings. Plaintiff is a
retired public safety officer for defendant, the City of Kalamazoo (the City). Plaintiff is
receiving both worker’s compensation benefits and a pension. The City pays the worker’s
compensation benefits, and the City contributed part of the funding for plaintiff’s pension. Most
of the facts in this matter were stipulated. At issue in this appeal is how the City may
“coordinate” the benefits with the pension, essentially meaning how much money may the City
deduct from the worker’s compensation benefits due to having partially funded the pension. We
affirm.
I. FACTUAL BACKGROUND
The City established a “defined benefit” pension plan in 1942, funded exclusively by
contributions from employees, contributions from the City, and investment earnings. Plaintiff
began working for the City in February of 1992. Plaintiff’s collective bargaining unit exercised
its right to be “exempt” from participation in Social Security. The City stopped making
contributions to the pension fund in 1997, because the fund was deemed overfunded,1 so the City
was not legally required to contribute. Thereafter, the pension fund received only employee
contributions and investment earnings. Over the course of his employment, plaintiff’s gross
contributions to the pension fund came to $69,930.28, which represents approximately 20% of
his pension benefits. During the same time period, the City paid $10,733,767.00 into the fund, or
approximately 28% of the fund’s total contributions of $38,584,375.00. However, Magistrate
Chris Slater found that the City provided approximately 53% of the total contributions to the
fund over the course of the fund’s entire existence since 1942.2
In December of 2006, plaintiff suffered a work-related heart attack. At that time, he was
treated and returned to work; however, he continued to suffer heart problems. Consequently, he
was eventually taken off work permanently. Plaintiff’s last day of work was May 3, 2008.
Pursuant to his union contract, plaintiff received one year of his full wages. Plaintiff then
formally retired on April 1, 2009. Because plaintiff’s retirement was a “duty disability
retirement,” he received service credit for 25 years of employment. The parties initially disputed
whether plaintiff was entitled to worker’s compensation benefits. After four months, the City
paid a “lump sum” for those months and proceeded to make weekly payments. Plaintiff’s
pension payments are $960.41 a week before taxes, and his uncoordinated worker’s
compensation rate is $706.00 a week. Plaintiff is not required to pay state income tax or Federal
Insurance Contributions Act (FICA)3 taxes on his pension; however, he is liable for federal
income tax.
The City calculated that it should deduct $691.78 a week from plaintiff’s worker’s
compensation benefits. The City calculated that amount based on its conclusion that plaintiff
had funded 18% of his pension benefits, so the City could “coordinate” 82% of the after-tax
value of plaintiff’s pension payments. The parties later agreed that the City made an arithmetic
error and should have used 20% instead of 18%. Plaintiff contended that the City’s coordination
should be based on the 28% contribution to the fund it made during the term of plaintiff’s
employment. A trial was held before Magistrate David Merwin, who subsequently issued a
lengthy opinion reciting what he aptly described as “extensive stipulations” by the parties. In
relevant part, Magistrate Merwin agreed that the City should only be permitted to coordinate
28% of the after-tax value of plaintiff’s pension, which Merwin calculated to be $204.21.
The parties then appealed. The MCAC noted that plaintiff argued that the City should
not be permitted to coordinate any benefits, and the City argued that it should be permitted to
coordinate all of the benefits. The MCAC found “absolutely no merit in the arguments that
suggest that all or none of plaintiff’s pension is coordinatable [sic].” It otherwise adopted much
of Magistrate Merwin’s findings of fact and of law. It concluded, however, that Merwin had
improperly calculated the after-tax amount of plaintiff’s pension because the pension was not
1
Magistrate Merwin observed that the experts were at least implicitly of the opinion that the
“overfunded” nature of the City’s pension fund was exceptional and perhaps unique.
2
This percentage was not a stipulation, but as will be discussed, this factual finding was proper.
3
26 USC § 3101 et seq. FICA is essentially a payroll tax to fund Social Security and Medicare.
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subject to FICA or state income taxes. It also concluded that Merwin improperly calculated the
amount of coordination based on the City’s contributions to the pension fund only during the
term of plaintiff’s employment, rather than the entirety of the City’s contributions. It therefore
remanded for recalculation of the amount of coordination to which the City was entitled.
On remand, as noted, Magistrate Slater determined that over the course of the pension
fund’s existence, the City had contributed approximately 53% of the total contributions.
However, Slater noted that there was no evidence in the record regarding contributions before
1974, and in the absence of any such evidence, the City’s “contributions for those years must be
deemed zero.” Slater arrived at a similar after-tax value for plaintiff’s pension, but he added
back in the amount of FICA and state income tax that plaintiff did not pay. He concluded that
the City was entitled to coordinate 53% of that final amount, which Slater calculated to be
$447.13. On appeal, the MCAC again rejected arguments from both parties to the effect that
either no coordination should be permitted or no worker’s compensation benefits should be paid.
The MCAC concluded that Slater had not erred by refusing to reopen the record to take
additional evidence, and that Slater had properly “performed the appropriate calculations in this
matter as directed by the Commission.” The MCAC adopted Slater’s calculation as its own and
affirmed Slater’s decision. We granted plaintiff leave to appeal.
II. SUMMARY OF ISSUES PRESENTED
We note initially that both parties have asked us to reverse the decision of the MCAC.
The City is not permitted to do so under the present procedural posture of this matter. Plaintiff
and the City each independently sought leave to appeal the decision of the MCAC in separate
applications. In the instant appeal, this Court granted plaintiff’s application in part, as to three of
the issues plaintiff requested. Reidenbach v City of Kalamazoo, unpublished order of the Court
of Appeals, Docket No. 340863 (entered April 13, 2018). At the same time, this Court denied
the City’s application “for lack of merit in the grounds presented.” Reidenbach v City of
Kalamazoo, unpublished order of the Court of Appeals, Docket No. 340867 (entered April 13,
2018). Consequently, the City is only an appellee, not an appellant. “[A]n appellee that has not
sought to cross appeal cannot obtain a decision more favorable than was rendered by the lower
tribunal.” Ass’n of Businesses Advocating Tariff Equity v PSC, 192 Mich App 19, 24; 480
NW2d 585 (1991).
We emphasize that the City was not without a remedy. An appellee is absolutely entitled
to file a cross-appeal by virtue of being an appellee, even as an appellee in an appeal by leave
granted. See MCR 7.207(A)(1); Costa v Community Emergency Med Svcs, Inc, 263 Mich App
572, 583-584; 689 NW2d 712 (2004). Notwithstanding this Court’s denial of the City’s
application for leave in Docket No. 340867, the City remained entitled to file a cross-appeal in
this docket number, which would have permitted the City to assert arguments in support of
greater relief than affirmance. The City elected not to do so. We will therefore only entertain
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the City’s arguments to the extent they can be construed as advancing an alternative basis to
affirm.4
Consequently, there are three issues before us. First, how should the amount of
coordination to which the City is entitled be calculated. Secondly, how should the after-tax
value of plaintiff’s pension benefit be calculated. And finally, is the City is entitled to coordinate
the pension and worker’s compensation benefits for the four-month period during which it made
no benefit payments. The MCAC did not decide the last issue, but plaintiff raised all of these
issues properly below and pursues them on appeal, so they are preserved for our review. Polkton
Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).
III. SUMMARY OF APPLICABLE LAW
In 1981, the Legislature enacted MCL 418.354, “which provides for the coordination of
wage-loss benefits” and was intended “to prevent duplicate wage-loss payments while
maintaining suitable wage-loss benefits.” Drouillard v Stroh Brewery Co, 449 Mich 293, 299-
300; 536 NW2d 530 (1995). Its legislative history unambiguously displays a concern with the
avoidance of double compensation. See id. at 300 n 1. Specifically, MCL 418.354 allows
“coordination of workers’ compensation benefits with employer-funded pension plan payments.”
Romein v Gen Motors Corp, 436 Mich 515, 521; 462 NW2d 555 (1990), aff’d sub nom, Gen
Motors Corp v Romein, 503 US 181; 112 S Ct 1105; 117 L Ed 2d 328 (1992). The coordination
means that an employer paying worker’s compensation obligations may set off “that portion of
certain other benefits, such as pensions and social security payments, also received by the
employee and financed by the employer.” Franks v White Pine Copper, 422 Mich 636, 647; 375
NW2d 715 (1985), superseded in part by statute on other grounds, see Romein, 436 Mich at 523
n 3. Both parties accept, as they must, that the City is entitled to coordinate, i.e., deduct, some
amount of money from plaintiff’s worker’s compensation payments on the basis of the City’s
contributions to the pension fund. The dispute is only how to determine that amount.
We note that both parties’ arguments are convoluted and difficult to comprehend, and it
has not been easy for us to discern what relief they even desire. It appears plaintiff argues that
Magistrate Merwin determined the correct formula in the first instance: first, the City may
coordinate 28% of the after-tax value of his pension because that represents the money provided
by the City to the pension fund during the term of his employment; and secondly, the
coordination must be based on the after-tax value of his pension calculated by reference to a
statutory table that includes all taxes. In contrast, the City does not provide a coherent argument
regarding how to engage in coordination but vigorously argues that plaintiff’s methodology is
absurd and inequitable. It also argues that the coordination must be based on the net portion of
the pension plaintiff actually receives, which is the same as the gross payment because plaintiff
pays no taxes. As noted, plaintiff additionally argues that the City should not be permitted to
coordinate any benefits for a four-month period during which it made no worker’s compensation
benefits, followed by a lump-sum payment.
4
In any event, to the extent we can comprehend the City’s arguments in support of greater relief,
they do not appear obviously meritorious.
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IV. STANDARD OF REVIEW
In an appeal from the Michigan Compensation Appellate Commission, we primarily
review the decision of the MCAC, not any underlying decision by a magistrate. Omian v
Chrysler Group LLC, 309 Mich App 297, 306; 869 NW2d 625 (2015). We will not disturb the
MCAC’s factual findings if the MCAC properly reviewed the magistrate’s decision for
“substantial evidence” and the MCAC’s own findings are supported by “any evidence.” Mudel v
Great Atlantic & Pacific Tea Co, 462 Mich 691, 709-710; 614 NW2d 607 (2000). However, we
review any questions of law, including the construction of statutes, de novo. Auto-Owners Ins
Co v Amoco Prod Co, 468 Mich 53, 57; 658 NW2d 460 (2003). “Due deference should be given
to the administrative expertise of the WCAC, as well as to the administrative expertise of the
magistrate.” Holden v Ford Motor Co, 439 Mich 257, 268; 484 NW2d 227 (1992).
Notwithstanding that deference, “a decision of the WCAC is subject to reversal if it is
based on erroneous legal reasoning or the wrong legal framework.” DiBenedetto v West Shore
Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000). We review the interpretation and
construction of statutes de novo with the goal of discerning and giving effect to the intent of the
Legislature. Id. at 402. If the words of a statute are plain and clear, it will be enforced as
written; we will only engage in judicial interpretation if the statutory language is ambiguous. Id.V. COORDINATION PERCENTAGE
Plaintiff argues that because the City contributed 28% of the contributions to the pension
fund during the term of plaintiff’s employment, the City should only be permitted to coordinate
28% of his pension. The City contends that it should be able to coordinate at least5 53% of
plaintiff’s pension, which represents its total contributions to the pension fund over the course of
the fund’s existence. We conclude that the MCAC correctly determined how the City may
coordinate the benefits.
MCL 418.354 provides in relevant part as follows:
(1) This section applies if either weekly or lump sum payments are made
to an employee as a result of liability under section 301(7) or (8), 351, or 835 with
respect to the same time period for which the employee also received or is
receiving . . . pension or retirement payments under a plan or program established
or maintained by the employer. Except as otherwise provided in this section, the
employer’s obligation to pay or cause to be paid weekly benefits other than
specific loss benefits under section 361(2) and (3) shall be reduced by these
amounts:
* * *
5
The City’s argument is not clear, but to the extent it seeks coordination of greater than 53%,
any such argument would be impermissible in the absence of a cross-appeal, and we will not
consider it.
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(e) The proportional amount, based on the ratio of the employer’s
contributions to the total contributions to the plan or program, of the after-tax
amount of the pension or retirement payments received or being received by the
employee pursuant to a plan or program established or maintained by the same
employer from whom benefits under section 301(7) or (8), 351, or 835 are
received, if the employee did contribute directly to the pension or retirement plan
or program. Subsequent increases in a pension or retirement program shall not
affect the coordination of these benefits.
As discussed, the parties stipulated that plaintiff suffered a personal injury arising out of his
employment. That injury resulted in his total disability, which in turn caused him wage loss and
forced him to retire, thereby entitling him to the receipt of pension benefits. It is also established
that both plaintiff and the City contributed to the pension fund. The MCAC properly determined
that MCL 418.354(1)(e) applied and dictated how to calculate the proportion of plaintiff’s
pension that the City may coordinate.
The plain language of the statute states that the amount must be “based on the ratio of the
employer’s contributions to the total contributions to the plan or program.” Importantly, the
preceding clause is set off by commas as a parenthetical. As a consequence, the sentence:
The proportional amount, based on the ratio of the employer’s contributions to the
total contributions to the plan or program, of the after-tax amount of the pension
or retirement payments received or being received by the employee . . .
is semantically identical to:
The proportional amount of the after-tax amount of the pension or retirement
payments received or being received by the employee . . . , based on the ratio of
the employer’s contributions to the total contributions to the plan or program.
Therefore, the Legislature requires “the proportional amount of the after-tax amount of the
pension” to be calculated “based on the ratio of the employer’s contributions to the total
contributions to the plan or program.” The only way to parse that requirement is to consider all
of the City’s contributions to the pension fund over the course of its entire existence. Plaintiff’s
interpretation would either restructure the sentence contrary to its plain grammar or implicitly
insert the phrase “during the employee’s employment.” We may not do so.
Plaintiff cites an unpublished case from this Court allegedly holding to the contrary.
Unpublished cases are not binding on us pursuant to either stare decisis or the first-out rule.
MCR 7.215(C)(1); MCR 7.215(J)(1); Paris Meadows LLC v Kentwood, 287 Mich App 136, 145
n 3; 783 NW2d 133 (2010). In any event, in the case plaintiff cites, the panel concluded that the
facts presented were unusual and not contemplated by the Legislature, so a literal interpretation
of the statute would be unjust and contrary to the statute’s legislative purpose. Bailey v ANR
Freight Sys, Inc, unpublished per curiam opinion of the Court of Appeals, issued December 21,
1999 (Docket No. 205606), pp 3-4. The panel relied on the “absurd result” rule, which may only
be invoked where it is “quite impossible” that the Legislature could have intended the result.
Johnson v Recca, 492 Mich 169, 191-195; 821 NW2d 520 (2012).
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Here, as noted, the Legislative purpose underlying the statute is the avoidance of double
payments by the employer. The facts in this matter are apparently unusual in that the pension
fund became overfunded during the term of plaintiff’s employment, which is why the City
stopped making contributions. The evidence indicated that the fund became overfunded at least
in part because its investments yielded exceptionally good returns. The City’s payments into the
fund before plaintiff’s term of employment consequently did affect the funding of plaintiff’s
entire pension. We are unpersuaded that a literal application of the language of the statute would
either create an unjust result or depart from the statute’s legislative purpose. We therefore
decline to consider Bailey persuasive under the present circumstances. The MCAC correctly
applied the statutory language and properly found that Merwin failed to do so.
The City argues that the MCAC erred by determining that there was no evidence in the
record showing how much money the City contributed to the pension fund before 1974, and
thereby deeming that amount to be zero. More precisely, the City argues that it should have been
permitted to supplement the record to provide evidence regarding its earlier contributions.
Leaving aside whether the City may even ask for this relief, we disagree.
The parties properly agreed that, at trial, the City bore the burden of proving its right to
coordinate benefits and reduce plaintiff’s workers’ compensation. See Brown v Bechwith Evans
Co, 192 Mich App 158, 167-169; 480 NW2d 311 (1991). In any event, agencies may allocate
burdens of proof in a manner consistent with the legislative scheme being administered and
properly impose the burden of producing evidence on a party having superior access to the
relevant facts. Mich Tool Co v Employment Security Comm, 346 Mich 673; 78 NW2d 571
(1956). The City declined to carry its burden, and it did not seek permission to supplement the
record until after the MCAC decided the parties’ first appeal and remanded the case to
Magistrate Slater for recalculation. The MCAC had the discretion to order a magistrate to take
further evidence, MCL 418.861a(12), but the MCAC was not required to do so. The City simply
failed to submit evidence when it should have done so, and we do not find that the MCAC
abused its discretion under the circumstances by declining to permit a last-minute addendum.
Magistrate Slater properly relied on the evidence in the record for his decision. Based on
the financial data in the record, Slater determined that the City had contributed 53% of the total
contributions to the pension fund. It appears that he therefore inferred that 53% represented an
accurate estimated calculation of the coordination percentage. Magistrates and the MCAC may
draw reasonable inferences from established facts. Zytkewick v Ford Motor Co, 340 Mich 309,
315; 65 NW2d 813 (1954). The plain language of MCL 418.354(1)(e) dictates that coordination
must be based on the City’s total contributions to the pension fund. Therefore, we conclude that
the MCAC’s decision is legally correct, and to the extent it implicitly or explicitly adopted its
magistrates’ factual findings, the MCAC properly found those findings supported by ample
record evidence.
VI. AFTER-TAX VALUE
Having concluded that the MCAC properly determined that the City was entitled to
coordinate 53% of plaintiff’s pension, the correct value of that pension must also be determined.
The plain language of MCL 418.354(1)(e) provides that coordination is of “the after-tax amount
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of the pension . . . received by the employee.” The “after-tax amount” is defined in MCL
418.354(13), which provides in relevant part:
As used in this section, “after-tax amount” means the gross amount of any
benefit under subsection . . . (1)(e) reduced by the prorated weekly amount which
would have been paid, if any, under the federal insurance contributions act, 26
USC 3101 to 3128 [FICA], and state income tax and federal income tax,
calculated on an annual basis using as the number of exemptions the disabled
employee’s dependents plus the employee, and without excess itemized
deductions. In determining the “after-tax amount” the tables provided for in
section 313(2) shall be used. The gross amount of any benefit under subsection . .
. (1)(e) shall be presumed to be the same as the average weekly wage for purposes
of the table. The applicable 80% of after-tax amount as provided in the table will
be multiplied by 1.25 which will be conclusive for determining the “after-tax
amount” of benefits under subsection . . . (1)(e).
Consequently, the “after-tax amount” of plaintiff’s pension depends on FICA, state, and federal
income tax. The MCAC, in the parties’ first appeal, noted that because plaintiff’s pension is not
subject to FICA or state income taxes, “according to § 354(13), reduction by the § 313 tables is
not necessary for those amounts.”
The City argues that plaintiff paid no taxes, and therefore the “after-tax amount” of his
pension should be exactly the same as the gross payment. Irrespective of the language of the
statute, this is factually incorrect, because plaintiff is liable for federal income taxes. Plaintiff
argues that the plain language of the statute mandates that the “after-tax amount” of his pension
must deduct FICA, state, and federal taxes even though he is only liable for the latter. We
disagree with this contention as well.
Pursuant to the plain language of the statute, the “after-tax value” of plaintiff’s pension
means, in relevant part, a “reduc[tion] by the prorated weekly amount which would have been
paid, if any, under [FICA, state, and federal income tax].” The determination of that amount is
made by referring to the “tables” published yearly by the Bureau of Worker’s Disability
Compensation pursuant to MCL 418.313. The tables “are consulted to compute the difference
between the after-tax value of a . . . disabled employee’s average weekly wage at the time of the
injury and the after-tax value of subsequent wages.” Linton v Schafer Bakeries, Inc, 252 Mich
App 41, 43; 656 NW2d 185 (2002). The MCAC determined that the tables “include the specific
amounts used to produce the general figure,” but pursuant to MCL 418.354(13), if “any tax
should not be applied, the tables allow for that amount to be excluded.” The tables include
deductions for FICA and state income taxes.
We agree with the MCAC’s interpretation of MCL 418.354(13). The statute refers to
taxes that “would have been paid, if any.” Plaintiff would not, however, have paid FICA or state
income taxes, because by law he is exempt from doing so. The clause “if any” anticipates the
possibility that any of the subsequently enumerated tax liabilities might not be present.
Additionally, to the extent there may be any ambiguity in the meaning of MCL 418.354(13), we
defer to the MCAC’s superior expertise regarding a statute it is charged with administering, see
In re Complaint of Rovas, 482 Mich 90, 98-111; 754 NW2d 259 (2008), and we independently
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conclude that the MCAC’s interpretation is the most consistent with the Legislature’s goal of
avoiding double recoveries. We conclude that the “after-tax value” mandated by MCL
418.354(13) pertains to taxes for which the employee is actually legally liable, and the clause
“would have paid” commands ignorance of whether the employee actually paid those taxes.
Therefore, the MCAC properly found that Magistrate Slater engaged in the correct
calculations. Slater reviewed the applicable tables, which determined that 80% of the after-tax
value of plaintiff’s $960.41 gross pension payments was $587.44. Because the tables calculate
an 80% value, Slater then multiplied that amount by 1.25, pursuant to MCL 418.354(13), to
arrive at an after-tax value of $734.32. Slater then correctly recognized that the tables included
reductions for FICA and state income taxes for which plaintiff was not liable. Slater then
properly added back $73.44 in FICA taxes and $35.90 in state income taxes, based on evidence
in the record. He therefore correctly concluded that the true after-tax value of plaintiff’s pension
for purposes of MCL 418.354(1)(e) was $843.64. As discussed previously, Slater then correctly
multiplied this amount by 53% and determined that the City was entitled to coordinate $447.13
of plaintiff’s worker’s compensation benefits.
VII. COORDINATION OF MAY TO SEPTEMBER, 2009
As noted above, there was a four-month period, early in this matter, during which the
City did not make any worker’s compensation benefit payments to plaintiff. Following that
period, the City paid a “lump sum” for those months, and then proceeded to make weekly
payments. Plaintiff finally argues that the City should not have been permitted to coordinate its
payment representing those months, on the theory that coordination requires the employee to
actually receive benefit payments. We disagree with plaintiff’s conclusion.
MCL 418.354(8) provides in relevant part:
Except as provided in [inapplicable subsections], a credit or reduction of
benefits otherwise payable for any week shall not be taken under this section until
there has been a determination of the benefit amount otherwise payable to the
employee . . . and the employee has begun receiving the benefit payments.
Thus, an employer may not reduce an employee’s wage loss benefits under MCL 418.354 until a
determination of the benefit amount payable has been made and the employee has begun
receiving wage loss benefits. Although MCL 418.354(8) does not expressly address retroactive
coordination of benefits, it implicitly provides for coordination at the time the employee receives
benefit payments, whenever they commence. Notably, MCL 418.354(1) explicitly applies to
lump sums as well as weekly payments. MCL 418.354(8) does not indicate a legislative intent to
penalize an employer who disputes an employee’s claim for wage loss benefits. As discussed,
MCL 418.354 is intended to prevent employers from being required to pay in excess of an
employee’s actual wage loss. See Franks, 422 Mich at 655-658.
Here, the parties did initially dispute plaintiff’s entitlement to worker’s compensation
benefits, which Magistrate Merwin found to have been in good faith. The City commenced
payment of those benefits in September of 2009. The parties stipulated that plaintiff’s
entitlement to those benefits began when his salary terminated on April 1, 2009. The City paid
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plaintiff a lump sum for the intervening period, and then proceeded to make weekly payments,
albeit based on its incorrect coordination formula. Plaintiff apparently contends that the “lump
sum” should be augmented to reflect approximately four months of his uncoordinated worker’s
compensation benefits of $706.00 a week. However, we conclude that doing so would effectuate
a penalty, and contravene the statute’s plainly stated applicability to lump sums. We conclude
that it was proper for the City to coordinate the lump sum payment. The MCAC properly
adopted Magistrate Merwin’s directive to the City to coordinate that amount pursuant to the 53%
figure as determined by Magistrate Slater.
VIII. CONCLUSION
We conclude that the MCAC’s final decision and order is legally correct and properly
factually supported. We therefore affirm. As discussed previously, because the City did not file
a cross-appeal as it was entitled to do, we decline to consider the City’s arguments seeking to
obtain greater relief than affirmance. Because both parties asked us to reverse the MCAC, and
we decline to do so, we deem neither party to have “prevailed” and direct that they shall bear
their own costs. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Brock A. Swartzle
/s/ Jane E. Markey
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