(concurring.) I concur with the result reached in the majority opinion but write separately because I disagree with the rationale employed in reaching the conclusion that our decision in DNR is not entitled to res judicata effect. An appellate decision is not stripped of its precedential value simply because it does not set forth in detail, or at all, the positions of the parties. Nor is it significant that our decision in DNR did not contain a legal description of the property in dispute. There has been no claim that the property referred to in that decision is different than the parcel at issue here. Likewise, the fact we do not know the results of the remand in DNR is without import. We concluded in DNR that the wmpa had obtained fee title. We remanded for further proceedings consistent with that opinion. We did not remand for a determination of the validity of wmpa’s title. Thus, the remand could not have affected our conclusion that the wmpa held fee title.
*173The final basis of the majority’s opinion is that a denial of an application for leave to appeal or a motion for rehearing is not a decision "on the merits.” After this Court entered its decision in DNR, the appellees moved for a rehearing for clarification of this Court’s decision. We denied the motion. However, the question is not whether denial of the motion should have res judicata effect,1 but rather whether the opinion of this Court should have such effect.
The reason our statement in DNR is not entitled to res judicata effect is because the subject was not actually litigated in the trial court. In good faith and bad judgment, we accepted as fact a statement made by wmpa in its brief that it had acquired title and ownership of the pump house property subsequent to our 1966 decision in West Michigan Park Ass’n v Department of Conservation, 2 Mich App 255; 139 NW2d 758 (1966), lv den 377 Mich 709 (1966). The dnr, the only appellee to file a brief in the DNR decision, did not contradict this assertion and we had no information that the title claimed was of a questionable nature. Moreover, the issue was only tangential to the main controversy and apparently did not seem to be of special importance at the time. Our review of the record now indicates that no evidence had been presented to the trial court on this disputed question of fact.
In the instant case, the trial court concluded that the issue of title was not actually litigated before the DNR trial court despite the apparent language in our appellate decision to the contrary. This factual finding is correct. Since the issue was not actually litigated, the purported factual con*174elusion of title in DNR does not have res judicata effect under the second Tucker requirement.
This issue arises because the wmpa argues that the denial of the motion is an indication that this Court’s decision in DNR was final.