Kern v. City of Flint, Docket No. 59919

• Decision Date: 06 July 1983
• Docket Number: Docket No. 59919
• Citation: 125 Mich.App. 24,335 N.W.2d 708
• Parties: Charles H. KERN and Sybil R. Kern, Plaintiffs-Appellees, v. The CITY OF FLINT, a Michigan municipal corporation, Defendant-Appellant. 125 Mich.App. 24, 335 N.W.2d 708
• Court: Court of Appeal of Michigan — District of US

Page 708

335 N.W.2d 708

Charles H. KERN and Sybil R. Kern, Plaintiffs-Appellees, v. The CITY OF FLINT, a Michigan municipal corporation,

Defendant-Appellant.

Docket No. 59919.

125 Mich.App. 24, 335 N.W.2d 708

Court of Appeals of Michigan.

Submitted Feb. 9, 1983.

Decided April 18, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 26] Morrissey, Bove & Ebbott by Wm. H. Morrissey, Flint, for plaintiffs-appellees.

James Whalen, City Atty., Flint (Patrick H. Hynes, Flint, of counsel), for defendant-appellant.

Before DANHOF, C.J., and V.J. BRENNAN and BAGULEY, ^* JJ.

PER CURIAM.

Defendant appeals from a judgment entered in favor of plaintiffs after a bench trial in an equity action.

Plaintiff Charles Kern was employed in May, 1974, by the City of Flint as a police officer with approximately 23 years of service. In late May, Mr. Kern met with James Swidorski of the city's Department of Finance to discuss early retirement options. Mr. Swidorski presented plaintiff with various options, one of which indicated that Mr. Kern could receive $688.98 per month if he retired with 23 years of service. Mr. Kern discussed the matter with his wife and with his insurance agent and it was determined that he would require at least $700 per month in pension benefits in order to retire. Mr. Swidorski informed Mr. Kern that, since he would have over 23 years of service accumulated on the date he proposed to retire, the benefits received under the option described above would exceed the $688.98 figure. Mr. Kern elected to retire under the foregoing option effective July 27, 1974.

Mr. Kern began receiving monthly retirement benefits from the city in the amount of $734.17 immediately after he retired and continued to receive such benefits until April, 1976, when the city informed him that his benefits had been miscalculated[125 MICHAPP 27] and that he was entitled to receive only $647.06 per month. The city withheld a portion of Mr. Kern's pension benefits in succeeding months until it had recouped the $1,753.82 it claimed to have overpaid Mr. Kern. Thereafter, it issued monthly payments of $647.06.

Plaintiffs commenced this action to recover the amount withheld and to compel defendant to pay the amount originally represented. They also sought to recover consequential damages.

The trial court denied plaintiffs' claim for consequential damages. However, it found that, although the amount of monthly benefits Mr. Kern was entitled to receive, using the correct formula, was only $647.06, defendant's finance officer had represented to Mr. Kern that he would receive a larger amount and that Mr. Kern would not have retired at that time had he known that he would receive less than $700 per month. Therefore, the court ordered defendant to begin paying plaintiffs $700 per month in benefits and permitted plaintiffs to recover an amount from the city equivalent to the amount they would have received had defendant been paying $700 per month in benefits from the time Mr. Kern retired.

In equity cases, this Court reviews the record de novo, with due deference given to the findings of the trial court. This Court will sustain the trial court's findings unless convinced that it would have reached a contrary result. Groveland Twp. v. Jennings, 106 Mich.App. 504, 509-510, 308 N.W.2d 259 (1981).

It appears that the reason the finance officer miscalculated the benefits to which Mr. Kern was entitled was because he applied a formula which was based on the average salary of Mr. Kern using the best three years out of a five-year period of Mr. [125 MICHAPP 28] Kern's employment. The correct formula involved calculations based on the best five years out of a ten-year period. Mr. Swidorski used the best three out of five formula because an offer had been presented to the union which represented Mr. Kern to switch to that formula. Mr....