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STATE OF MICHIGAN 

COURT OF APPEALS 

BOARD OF TRUSTEES OF THE CITY OF 

PONTIAC POLICE AND FIRE RETIREE 

PREFUNDED GROUP HEALTH AND 

INSURANCE TRUST, 

 Plaintiff-Appellant, 

FOR PUBLICATION 

October 25, 2016 

9:05 a.m. 

v No. 316418 

Oakland Circuit Court 

CITY OF PONTIAC, LC No. 2012-128625-CZ 

 Defendant-Appellee. 

ON REMAND 

Before: MARKEY, P.J., and OWENS and FORD HOOD, JJ. 

PER CURIAM. 

 This case returns to this Court on remand from our Supreme Court to consider whether 

the City of Pontiac, acting through its Emergency Manager (EM), may retroactively eliminate its 

accrued contract obligation to make its annual contribution to the City of Pontiac Police and Fire 

Retiree Prefunded Group Health and Insurance Trust for the fiscal year ending June 30, 2012. In 

our prior opinion, we held that the EM’s Executive Order (EO) 225, issued August 1, 2012, 

which purported to amend the trust pursuant to § 19(1)(k) of 2011 PA 4, “did not retroactively 

eliminate the city’s obligation to contribute to the trust for the fiscal year ending June 30, 2012; 

consequently, we reverse[d] and remand[ed] for further proceedings.” Pontiac Police & Fire 

Retiree Prefunded Group Health & Ins Trust Bd of Trustees v City of Pontiac, 309 Mich App 

590, 592; 873 NW2d 121 (2015) (City of Pontiac I), rev’d in part, vacated in part, & remanded 

by 499 Mich 921; 878 NW2d 477 (2016) (City of Pontiac II). After considering the questions 

our Supreme Court posed in its remand order, we again conclude that EO 225 may not be applied 

retroactively to extinguish defendant’s accrued but unpaid 2011-2012 fiscal year contribution to 

the trust. We therefore reverse the trial court’s order granting summary disposition to defendant 

with respect to plaintiff’s breach of contract claim and remand for further proceedings. 

I. PERTINENT FACTS AND PROCEEDINGS 

 The amount that defendant was actuarially determined to owe the trust for the fiscal year 

ending June 30, 2012, was $3,473,923.28. Id. at 594. As explained in this panel’s prior opinion: 
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The trust was established in 1996 as a tax-exempt voluntary employees’ 

beneficiary association (VEBA), 26 USC 501(c)(9), to hold the contributions of 

police and firefighter employees and those of the city pursuant to collective 

bargaining agreements (CBAs) between the city and the various unions of the 

city’s police officers and firefighters. The trust held and invested these 

contributions to provide health, optical, dental, and life-insurance benefits to 

police and firefighters who retired on or after August 22, 1996, as required by the 

various CBAs. At issue is the efficacy of Executive Order 225 issued on August 

1, 2012, pursuant to § 19(1)(k) of 2011 PA 4, MCL 141.1519(1)(k), by the city’s 

emergency manager (EM), Louis H. Schimmel, which purported to amend the 

trust to remove the city’s annual obligation to contribute to the trust agreement 

“as determined by the Trustees through actuarial evaluations.” The trial court 

accepted defendant’s argument that the city’s EM properly modified the city’s 

obligation to contribute to the trust for the fiscal year ending June 30, 2012, by 

modifying the existing CBAs between the city and police and firefighter unions. 

The trial court also ruled that plaintiff’s claim under Const 1963, art 9, § 24, was 

without merit under Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 

642; 698 NW2d 350 (2005). [City of Pontiac I, 309 Mich App at 592-593.] 

 Although the trust agreement did not directly say when defendant’s required contribution 

was due, the parties agreed that the actuarially required contribution for the fiscal year ending 

June 30, 2012, was due on or before June 30, 2012. Id. at 597. “On August 1, 2012, the city’s 

EM issued Executive Order (EO) 225, which purported to amend the trust pursuant to § 19(1)(k) 

of 2011 PA 4, to terminate the city’s annual actuarially required contribution to the trust for the 

fiscal year ending June 30, 2012.” Id. In particular, EO 225 stated, in relevant part: 

 Article III of the Trust Agreement, Section 1, subsections (a) and (b) are 

amended to remove Article III obligations of the City to continue to make 

contributions to the Trust as determined by the Trustees through actuarial 

evaluations. 

 The Order shall have immediate effect. [EO 225, quoted in City of 

Pontiac I, 309 Mich App at 597-598.] 

 Plaintiff filed this action alleging that defendant’s failure to make the actuarially required 

contribution to the trust comprised a violation of Const 1963, art 9, § 24, a violation of an 

ordinance, and a breach of contract. City of Pontiac I, 309 Mich App at 599-600. On March 6, 

2013, defendant moved for summary disposition, arguing that there was no violation of Const 

1963, art 9, § 24 because our Supreme Court held in Studier that this provision does not apply to 

healthcare benefits, that there was no ordinance violation because 2011 PA 4 authorized the EM 

to amend ordinances, and that there was no breach of contract because 2011 PA 4 authorized the 

EM to modify a CBA. Id. at 600. The trial court granted summary disposition to defendant in 

accordance with defendant’s arguments. Id. 

 On appeal, we reversed on the ground that EO 225 as written had not retroactively 

eliminated defendant’s obligation to contribute to the trust for the fiscal year ending June 30, 

2012. City of Pontiac I, 309 Mich App at 608-610. We initially determined that the suspension 
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and repeal by referendum of 2011 PA 4 after the EM’s issuance of EO 225 did not affect the 

validity of the EM’s actions. Id. at 602-603. And, we upheld the trial court’s dismissal of 

plaintiff’s claim under Const 1963, art 9, § 24, in light of the holding in Studier that healthcare 

benefits are not accrued financial benefits protected by that constitutional provision. Id. at 603-

605. We also found without merit plaintiff’s ordinance violation claim because a city ordinance 

governing the trust or healthcare benefits for retired police officers and firefighters was not 

identified. Id. at 605-606. 

 With respect to plaintiff’s breach of contract claim, we discussed that defendant’s 

contractual obligation to fund the trust arose from the pertinent CBAs, and not the trust 

agreement itself. City of Pontiac I, 309 Mich App at 607. We concluded, based on the parties’ 

submissions, that defendant’s actuarially required contribution to the trust was past due on July 

1, 2012, and that, without modification of the pertinent CBAs, defendant’s obligation to fund the 

trust was breached on that date. Id. at 597, 607. We reasoned that the EM had the authority

under 2011 PA 4 to retroactively amend the CBAs with respect to defendant’s obligation to 

contribute to the trust. Id. at 607-608. We noted that 

after complying with the conditions specified in 2011 PA 4, the EM could “reject, 

modify, or terminate 1 or more terms and conditions of an existing collective 

bargaining agreement.” MCL 141.1519(1)(k). Because the parties to a collective 

bargaining agreement could apply its modified terms retroactively, we conclude 

that the EM also could do so under § 19(1)(k). [City of Pontiac I, 309 Mich App 

at 607 (citation omitted).] 

But, we went on to find that EO 225 did not, in fact, eliminate defendant’s actuarially required 

contribution to the trust for the fiscal year ending June 30, 2012. Id. at 608-609. We reasoned 

that EO 225 removed defendant’s obligation to continue to make contributions to the trust, and 

considering that EO 225 was given immediate effect upon its adoption on August 1, 2012, we 

determined that EO 225 applied to defendant’s present or future obligations, not to defendant’s 

accrued but unpaid contributions to the trust for the fiscal year ending June 30, 2012. Id. at 609. 

We found support for our reading of EO 225 in the written communications between the EM and 

the State Treasurer preceding the issuance of EO 225. Id. at 609-610. 

 Defendant applied for leave to appeal in our Supreme Court, which held oral argument on 

the application. On May 18, 2016, our Supreme Court reversed in part and vacated in part this 

Court’s opinion and remanded the case to this Court. City of Pontiac II, 499 Mich 921. Our 

Supreme Court’s order states, in relevant part: 

The Court of Appeals erred in its reading of Executive Order 225 (EO 225). 

Contrary to the Court of Appeals conclusion, EO 225 by its plain language 

expresses the intent of the emergency manager to extinguish the defendant’s 

2011-2012 fiscal year contribution. Although that contribution accrued on June 

30, 2012, the defendant had not yet paid the obligation when EO 225 went into 

effect. EO 225 clearly states that, as of August 1, 2012, the defendant no longer 

has an obligation “to continue to make contributions” under Article III of the 

Trust Agreement. It does not differentiate between already accrued, but unpaid 

obligations and future obligations, and thus by its terms applies to both. 
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Accordingly, the Court of Appeals erred by concluding that the emergency 

manager did not intend to extinguish the defendant’s 2011-2012 fiscal year 

contribution. Nonetheless, although the Court of Appeals determined that the 

emergency manager could retroactively extinguish the 2011-2012 fiscal year 

contribution through his authority under 2011 PA 14 [sic], it did not specifically 

address whether EO 225 was a permissible retroactive modification of the 

plaintiff’s accrued right to the contribution. See LaFontaine Saline, Inc v 

Chrysler Group, LLC, 496 Mich 26[; 852 NW2d 78] (2014). We therefore 

REVERSE that part of the Court of Appeals judgment which interprets EO 225, 

VACATE that part of the Court of Appeals judgment which discusses the 

plaintiff’s breach of contract claim, and REMAND this case to the Court of 

Appeals for it to consider: (1) whether the retroactivity analysis stated in 

LaFontaine applies to EO 225; (2) if so, whether the extinguishment of the 

defendant’s accrued, but unpaid, 2011-2012 fiscal year contribution by EO 225 is 

permissible under LaFontaine; and (3) if LaFontaine does not apply, the 

appropriate method for determining whether EO 225 constitutes a permissible 

retroactive modification of the 2011-2012 fiscal year contribution. [City of 

Pontiac II, 499 Mich at 921.] 

 On remand, this Court allowed the parties to file supplemental briefs. Bd of Trustees of 

the City of Pontiac v City of Pontiac, unpublished order of the Court of Appeals, entered June 24, 

2016 (Docket No. 316418). We now consider the three questions presented by our Supreme 

Court in its remand order. 

II. ANALYSIS 

(1) DOES THE RETROACTIVITY ANALYSIS OF LAFONTAINE APPLY TO EO 225? 

 In LaFontaine, our Supreme Court articulated the following principles to consider when 

deciding whether legislation may permissibly be applied retroactively: 

 Retroactive application of legislation presents problems of unfairness 

because it can deprive citizens of legitimate expectations and upset settled 

transactions. We have therefore required that the Legislature make its intentions 

clear when it seeks to pass a law with retroactive effect. In determining whether a 

law has retroactive effect, we keep four principles in mind. First, we consider 

whether there is specific language providing for retroactive application. Second, 

in some situations, a statute is not regarded as operating retroactively merely 

because it relates to an antecedent event. Third, in determining retroactivity, we 

must keep in mind that retroactive laws impair vested rights acquired under 

existing laws or create new obligations or duties with respect to transactions or 

considerations already past. Finally, a remedial or procedural act not affecting 

vested rights may be given retroactive effect where the injury or claim is 

antecedent to the enactment of the statute. [LaFontaine, 496 Mich at 38-39 

(quotation marks, ellipsis, and citations omitted); see also In re Certified 
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Questions, 416 Mich 558, 570-571; 331 NW2d 456 (1982) (stating the same four 

principles).] 

 We have not located any case law stating whether the principles set forth in Certified 

Questions and LaFontaine for determining whether a statute may be applied retroactively should 

also be used in considering whether an emergency manager’s executive order may be give 

retroactive effect. Nevertheless, we conclude that it is appropriate to apply the Certified 

Questions and LaFontaine principles concerning when legislation may permissibly be given 

retroactive effect to an emergency manager’s executive order. The determination of whether 

legislation applies retroactively is primarily a question of statutory interpretation. See 

LaFontaine, 496 Mich at 34 (“questions of statutory interpretation [are reviewed] de novo, 

including questions regarding retroactivity of amendments”); Frank W Lynch & Co v Flex 

Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001) (“In determining whether a statute 

should be applied retroactively or prospectively only, the primary and overriding rule is that 

legislative intent governs. All other rules of construction and operation are subservient to this 

principle.”) (quotation marks and citation omitted). Executive orders are generally subject to the 

same rules of interpretation as statutes. See Soap & Detergent Ass’n v Natural Resources 

Comm, 415 Mich 728, 756-757; 330 NW2d 346 (1982); Aguirre v Dep’t of Corrections, 307 

Mich App 315, 320-321; 859 NW2d 267 (2014). Because the determination of retroactivity is 

primarily a matter of interpretation and because executive orders are interpreted similarly to 

statutes, we believe the principles enunciated in LaFontaine used to determine whether a statute 

may permissibly be given retroactive effect should also be used in determining whether an 

executive order applies retroactively. We therefore answer our Supreme Court’s first question in 

the affirmative. The retroactivity analysis set forth in LaFontaine applies to EO 225.1

(2) UNDER LAFONTAINE, MAY DEFENDANT BY 225 EXTINGUISH ITS ACCRUED BUT 

UNPAID 2011-2012 FISCAL YEAR TRUST CONTRIBUTION? 

 Having determined that the LaFontaine analysis is applicable to EO 225, we now analyze 

whether the extinguishment of defendant’s accrued but unpaid 2011-2012 fiscal year 

contribution to the trust is permissible under LaFontaine.

2

 The first principle to consider is 

“whether there is specific language providing for retroactive application.” LaFontaine, 496 

 

1

 This conclusion is supported by the fact that the United States Supreme Court has stated “that 

congressional enactments and administrative rules will not be construed to have retroactive 

effect unless their language requires this result.” Landgraf v USI Film Prod, 511 US 244, 272; 

114 S Ct 1483; 128 L Ed 2d 229 (1994) (emphasis added; quotation marks and citation omitted). 

2

 The issue here is not whether the EM had authority under 2011 PA 4 to modify collective 

bargaining agreements; there is no question that the EM had such authority. See City of Pontiac 

I, 309 Mich App at 607 (“[u]nder 2011 PA 4, the EM could modify collective bargaining 

agreements, and, hence, could modify the city’s obligation to contribute to the trust”). Rather, 

the question presented is whether the particular executive order issued in this case, EO 225, 

comprised a permissible retroactive modification of defendant’s contractual obligation to 

contribute to the trust under the retroactivity analysis set forth in LaFontaine. 
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Mich at 38. In the statutory context, legislative silence regarding retroactivity undermines any 

argument that a statutory provision was intended to apply retroactively. Id. at 39-40. “Statutes 

are presumed to apply prospectively unless the Legislature clearly manifests the intent for 

retroactive application.” Johnson v Pastoriza, 491 Mich 417, 429; 818 NW2d 279 (2012).3

 

“The Legislature’s expression of an intent to have a statute apply retroactively must be clear, 

direct, and unequivocal as appears from the context of the statute itself.” Davis v State 

Employees’ Retirement Bd, 272 Mich App 151, 155-156; 725 NW2d 56 (2006). 

 In its order remanding the case to this Court, our Supreme Court stated that “EO 225 

clearly states that, as of August 1, 2012, the defendant no longer has an obligation ‘to continue to 

make contributions’ under Article III of the Trust Agreement.” City of Pontiac II, 499 Mich at 

921. But because EO 225 “does not differentiate between already accrued, but unpaid 

obligations and future obligations, [it] thus by its terms applies to both.” Id. Thus, our Supreme 

Court held that this Court “erred by concluding that the emergency manager did not intend to 

extinguish the defendant’s 2011-2012 fiscal year contribution.” Id. The law of the case doctrine 

binds this Court on remand to follow a decision of our Supreme Court regarding a particular 

issue in the same case. People v Herrera, 204 Mich App 333, 340; 514 NW2d 543 (1994). This 

Court is therefore bound by our Supreme Court’s determination that EO 225 by its terms applies 

to both accrued but unpaid obligations and future obligations and that the EM intended to 

extinguish defendant’s 2011-2012 fiscal year contribution. 

 But our Supreme Court did not determine whether EO 225 satisfies the first principle set 

forth in LaFontaine, i.e., “whether there is specific language providing for retroactive 

application.” LaFontaine, 496 Mich at 38. Indeed, the Supreme Court’s decision to remand the 

case to this Court to conduct an analysis under LaFontaine strongly suggests that the Supreme 

Court did not mean to resolve that issue. The fact that, as our Supreme Court determined, EO 

225 “does not differentiate between already accrued, but unpaid obligations and future 

obligations, and thus by its terms applies to both[,]” City of Pontiac II, 499 Mich at 921, does not 

answer the question whether EO 225 expresses with the requisite degree of clarity the intent that 

EO 225 would have a retroactive effect. See Davis, 272 Mich App at 155-156 (requiring a clear, 

direct, and unequivocal expression of intent to have a statute apply retroactively); id. at 167 

(explaining that the United States Supreme Court has “emphasized that to give legislation 

retroactive effect, Congress is required to ‘so indicate in the language of the statute in a manner 

that is so clear and positive as to leave no room to doubt that such was the intention of the 

legislature’ ”), quoting Landgraf v USI Film Prod, 511 US 244, 272; 114 S Ct 1483; 128 L Ed 2d 

 

3

 This presumption against retroactive legislation is premised on enduring legal principles 

“ ‘deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our 

Republic. Elementary considerations of fairness dictate that individuals should have an 

opportunity to know what the law is and to conform their conduct accordingly; settled 

expectations should not be lightly disrupted.’ ” Davis v State Employees’ Retirement Bd, 272 

Mich App 151, 166; 725 NW2d 56 (2006), quoting Landgraf, 511 US at 265. 
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229 (1994).4

 See also Frank W Lynch & Co, 463 Mich at 587, (expressing agreement “with the 

Landgraf Court that ‘a requirement that [the Legislature] make its intention clear helps ensure 

that the Legislature itself has determined that the benefits of retroactivity outweigh the potential 

for disruption or unfairness.’ ”), quoting Landgraf, 511 US at 268.5

 Our Supreme Court reasoned that EO 225 by its terms applies to both future obligations 

and accrued but unpaid obligations, given that EO 225 does not differentiate between those 

obligations. Although such an inference arises from the lack of differentiation between the two 

types of obligations, EO 225 does not clearly, directly, and unequivocally state that it is intended 

to apply retroactively to unpaid but accrued obligations. We conclude that the text of the order 

does not acknowledge with the required clarity the existence of accrued but unpaid obligations or 

state directly that such obligations were being retroactively removed. See LaFontaine, 496 Mich 

at 40 (noting that the Legislature had previously used specific retroactivity language when 

amending the relevant statute and that the Legislature’s silence regarding retroactivity in the 

amendment at issue undermined any claim that the amendment was intended to apply 

retroactively); Frank W Lynch & Co, 463 Mich at 584 (noting the absence of express language 

regarding retroactivity and the fact that the Legislature knows how to clearly state its intention 

that a statute apply retroactively). Also, EO 225 was given immediate effect, but this does not 

clearly express an intention that it is to apply retroactively. See LaFontaine, 496 Mich at 40 

(noting the fact that “the Legislature provided for the law to take immediate effect upon its filing 

date . . . only confirms its textual prospectivity”); Johnson, 491 Mich at 430 (noting that giving 

legislation “immediate effect” does not “at all suggest” that the legislation applies retroactively). 

We therefore conclude that the first principle stated in LaFontaine, “whether there is specific 

language providing for retroactive application,” indicates that EO 225 should apply prospectively 

only because it lacks “clear, direct, and unequivocal” language providing for its retroactive 

application. Davis, 272 Mich App at 155-156. 

 The second principle under LaFontaine is that “in some situations, a statute is not 

regarded as operating retroactively merely because it relates to an antecedent event.” 

LaFontaine, 496 Mich at 38-39. This principle “relate[s] to measuring the amount of entitlement 

 

4

 This Court in Davis noted that due process interests of fair notice and repose should be 

considered when deciding whether a statute should be applied retroactively. Davis, 272 Mich 

App at 158 n 3, citing Landgraf, 511 US at 266. See also LaFontaine, 496 Mich at 38 (noting 

that problems of unfairness arise from the retroactive application of legislation and citing 

Downriver Plaza Group v Southgate, 444 Mich 656, 666; 513 NW2d 807 (1994), which 

addressed a due process issue concerning the retroactivity of legislation that might “ ‘deprive 

citizens of legitimate expectations and upset settled transactions.’ ”) (citation omitted). 

5

 Although these cases address the obligation of a legislative body to express with sufficient 

clarity the intent to apply a provision retroactively, we have already concluded that the same 

requirement should apply equally to the author of an executive order given that executive orders 

are interpreted like statutes. See Soap & Detergent Ass’n, 415 Mich at 756-757; Aguirre, 307 

Mich App at 320-321. Also, applying executive orders retroactively can present problems of 

unfairness similar to applying legislation retroactively. See LaFontaine, 496 Mich at 38. 
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provided by a subsequent statute in part by services rendered pursuant to a prior statute.” Id. at 

38 n 25, quoting Certified Questions, 416 Mich at 571. We believe this principle is inapplicable 

under the facts and circumstances of this case. 

 The third principle identified in LaFontaine is that “in determining retroactivity, we must 

keep in mind that retroactive laws impair vested rights acquired under existing laws or create 

new obligations or duties with respect to transactions or considerations already past.” 

LaFontaine, 496 Mich at 39, citing Certified Questions, 416 Mich at 571. “A statute may not be 

applied retroactively if it abrogates or impairs vested rights, creates new obligations, or attaches 

new disabilities concerning transactions or considerations occurring in the past.” Davis, 272 

Mich App at 158. When all the facts become operative and are known, a cause of action accrues 

and it becomes a vested right. Certified Questions, 416 Mich at 573; see also Doe v Dep’t of 

Corrections (On Remand), 249 Mich App 49, 61-62; 641 NW2d 269 (2001) (“A cause of action 

becomes a vested right when it accrues and all the facts become operative and known.”). “In 

general, a cause of action for breach of contract accrues when the breach occurs, i.e., when the 

promisor fails to perform under the contract.” Tenneco Inc v Amerisure Mut Ins Co, 281 Mich 

App 429, 458; 761 NW2d 846 (2008) (quotation marks and citation omitted). 

 In this case, “[t]here is no dispute that Article III, § 1 of the trust obligates defendant to 

pay annual contributions to the trust that are determined to be ‘actuarially necessary’ to fund the 

future healthcare benefits of the pertinent retirees as required by the applicable [CBAs].” City of 

Pontiac I, 309 Mich App at 606. Further, the parties agree that defendant’s actuarially required 

contribution to the trust for the fiscal year of 2011-2012 was due on or before June 30, 2012. Id. 

Defendant had not paid that obligation when EO 225 went into effect on August 1, 2012. City of 

Pontiac II, 499 Mich at 921. Hence, as of July 1, 2012, defendant was in breach of its 

contractual obligation to make its annual contribution to the trust for the fiscal year of 2011-

2012. Plaintiff’s cause of action for breach of contract therefore accrued, and all of the facts 

became operative and known, on July 1, 2012, when defendant failed to perform under the 

contract. Tenneco Inc, 281 Mich App at 458. This accrued cause of action comprised a vested 

right as of that date. Doe, 249 Mich App at 61-62. Retroactive application of EO 225 would 

impair or abolish this vested right by eliminating defendant’s contractual obligation that forms 

the basis for plaintiff’s breach of contract claim. By impairing or abolishing an existing cause of 

action, EO 225 falls within the general proscription on retroactive provisions identified in the 

third LaFontaine principle. See Certified Questions, 416 Mich at 573; Doe, 249 Mich App at 62. 

 The fourth LaFontaine principle is that “a remedial or procedural act not affecting vested 

rights may be given retroactive effect where the injury or claim is antecedent to the enactment of 

the statute.” LaFontaine, 496 Mich at 39, citing Certified Questions, 416 Mich at 571. As 

discussed, retroactive application of EO 225 would impair or abolish plaintiff’s accrued cause of 

action for breach of contract. Hence, even if EO 225 could be deemed remedial or procedural, 

the fourth LaFontaine principle does not support retroactive application of EO 225 given that a 

vested right would be affected. Our “Supreme Court has held that a statute significantly 

affecting a party’s substantive rights should not be applied retroactively merely because it can 

also be characterized in a sense as ‘remedial.’ ” Doe, 249 Mich App at 62, citing Frank W Lynch 

& Co, 463 Mich at 585. In the context of retroactivity analysis under LaFontaine and Certified 

Questions, characterization of a statute as “remedial” “should only be employed to describe 

legislation that does not affect substantive rights.” Frank W Lynch & Co, 463 Mich at 585. In 
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this case, because EO 225 affects substantive rights, it cannot operate retroactively under the 

fourth LaFontaine principle. See Doe, 249 Mich App at 62-63. 

 Accordingly, we conclude that the retroactive application of EO 225 to extinguish 

defendant’s accrued but unpaid contribution to the trust for the 2011-2012 fiscal year is 

impermissible under LaFontaine. EO 225 does not contain “clear, direct, and unequivocal” 

language providing for its retroactive application, Davis, 272 Mich App at 155-156, and its 

retroactive application would impair or abolish plaintiff’s accrued cause of action for breach of 

contract, a vested right. Doe, 249 Mich App at 61-62. The trial court therefore erred in granting 

summary disposition in favor of defendant with respect to plaintiff’s breach of contract claim. 

(3) IF LAFONTAINE DOES NOT APPLY, WHAT IS THE PROPER METHOD TO 

DETERMINE WHETHER EO 225 MAY BE APPLIED RETROACTIVELY? 

 Our Supreme Court’s remand order further directed this Court to consider whether, “if 

LaFontaine does not apply, the appropriate method for determining whether EO 225 constitutes 

a permissible retroactive modification of the 2011-2012 fiscal year contribution.” City of 

Pontiac II, 499 Mich at 921. As the Court’s language reflects, it is only necessary for this Court 

to consider an alternative analytical framework if the LaFontaine analysis does not apply. 

Having concluded that LaFontaine does apply, it is unnecessary to address what method for 

assessing the permissibility of retroactive effect would otherwise apply to this situation. 

 Finally, we note that plaintiff’s supplemental brief on remand raises additional issues that 

are beyond the scope of our Supreme Court’s remand order. “[W]hen an appellate court gives 

clear instructions in its remand order, it is improper for a lower court to exceed the scope of the 

order.” K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 544; 705 

NW2d 365 (2005). Accordingly, we decline to address plaintiff’s arguments concerning 

additional issues. 

 In summation, we hold that the retroactivity analysis in LaFontaine applies to EO 225 

and that the purported extinguishment of defendant’s accrued but unpaid 2011-2012 fiscal year 

contribution is impermissible under LaFontaine. We therefore reverse the trial court’s order 

granting summary disposition to defendant with respect to plaintiff’s breach of contract claim 

and remand for further proceedings. We do not retain jurisdiction. No taxable costs are awarded 

to either party because a public question is involved. MCR 7.219. 

/s/ Jane E. Markey 

/s/ Donald S. Owens 

/s/ Karen M. Fort Hood