JOSE GARZA V DAN'S EXCAVATING INC
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STATE OF MICHIGAN
COURT OF APPEALS
JOSE GARZA,
UNPUBLISHED
October 30, 2007
Plaintiff-Appellant,
V
No. 274800
Wayne Circuit Court
LC No. 04-431721-NO
DAN’S EXCAVATING, INC.,
Defendant-Appellee.
Before: Zahra, P.J., and White and O’Connell, JJ.
MEMORANDUM.
Plaintiff appeals as of right from the trial court’s order granting summary disposition to
defendant and dismissing the case. Because this Court has already decided this case on its
merits, we affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Plaintiff was injured while driving a cement truck on a construction site for defendant’s
subcontractor and filed suit alleging that defendant was negligent in the maintenance of the
construction roadway. Defendant unsuccessfully moved for summary disposition and for
reconsideration, and then applied to this Court for leave to appeal.
This Court peremptorily reversed on the grounds that “Plaintiff failed to present evidence
that active negligence on defendant’s part caused his injury, and also failed to present evidence
to satisfy the elements of a claim under the common work area doctrine . . . .” Garza v Dan’s
Excavating, Inc, unpublished order of the Court of Appeals, entered August 25, 2006 (Docket
No. 269615). The trial court entered an order granting summary disposition and dismissing the
case, citing this Court’s August 25, 2006, order.
Plaintiff then filed a claim of appeal. Defendant moved to dismiss on the ground that this
Court had already decided the case on its merits. This Court denied the motion. Garza v Dan’s
Excavating, Inc, unpublished order of the Court of Appeals, entered January 24, 2007 (Docket
No. 274800).
Plaintiff now asks “[w]hether the lower court was properly ordered” to reverse its denial
of defendant’s motion for summary disposition on each of the grounds cited in this Court’s
August 25, 2006, order. But plaintiff proposes no procedural basis upon which this Court may
now deviate from its earlier decision. Because this Court, in its peremptory order, decided the
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dispositive issues in this case, that order now stands as the law of the case and governs this
appeal. Webb v Smith, 224 Mich App 203, 209; 568 NW2d 378 (1997). If plaintiff wanted us to
reconsider the order, he should have timely filed an appropriate motion rather than raising his
issues anew before a different panel of this Court.
For these reasons, we affirm the trial court’s order in conformance with this Court’s
August 25, 2006, order, and we decline to examine plaintiff’s issues further.
Affirmed.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
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