PETER V GREGORY V CLARENCE A LAFAIVE
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STATE OF MICHIGAN
COURT OF APPEALS
PETER V. GREGORY and LOUIS GREGORY,
UNPUBLISHED
June 14, 2002
Plaintiffs/counterdefendantsAppellees,
v
No. 232158
Marquette Circuit Court
LC No. 00-014646
CLARENCE A. LAFAIVE and DELORES H.
LAFAIVE,
Defendants/counterplaintiffsAppellants.
Before: Griffin, P.J., and Hood and Sawyer, JJ.
MEMORANDUM.
Defendants/counterplaintiffs appeal as of right from the entry of a judgment in favor of
plaintiffs/counterdefendants. We affirm.
Defendants first allege that the trial court erred in failing to dismiss the action based on
plaintiffs’ failure to prosecute. We cannot conclude that the trial court abused its discretion by
denying the motion to dismiss. In re Contempt of Tanksley, 243 Mich App 123, 127; 621 NW2d
229 (2000). The property division had been ruled on by the trial court, and the preparation of the
judgment and survey were the only procedural requirements remaining. It was permissible for
either party to submit a judgment, MCR 2.602, and any dismissal would have resulted in the
refilling of the action or a motion for reinstatement, MCR 2.502(C). The court’s transition from
a manual to computer docketing system also attributed to the dormancy of the litigation. Based
on these circumstances, there was no abuse of discretion. Tanksley, supra.
Defendants next allege that the law of the case doctrine does not apply to prior erroneous
appellate factual findings. On the record available, see Band v Livonia Associates, 176 Mich
App 95, 103-104; 439 NW2d 285 (1989), we cannot conclude that the prior appellate decision,
Gregory v LaFaive, 172 Mich App 354; 431 NW2d 511 (1988), contained erroneous factual
determinations. Furthermore, the appellate decision did not preclude the trial court from making
additional factual findings on remand. In fact, the opinion invited further factual findings on
remand. Id. at 360 n 5. We also note that the trial court stated that its ultimate division of
property did not comport with the appellate decision on remand, but was based on the parties’
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agreement regarding the drawing of the line.
assimilation of the land to the original plat.
Rather, the decision was based on practical
Affirmed.
/s/ Richard Allen Griffin
/s/ Harold Hood
/s/ David H. Sawyer
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