Hill v. City of Warren ( 2005 )

705 N.W.2d 345 (2005) 474 Mich. 916

Robert HILL, Shirley Hill, Timothy Carlson, Randall Kolodziejski, Linda Kolodziejski, William Glasson, Beverly Glasson, David Abraham, Kristin Abraham, Dennis D. Marlowe, Dennis Hight, Tracy Hight, Ted Dobek, Carolyn Kupiec, Frederick Cross, Michelle Cross, Sandra Powers, Daniel G. Olivares, Francesco Simone, Pamela Simone, Gary Potapshyn, Gerald Kowalski, and Frank Vitale, Plaintiffs-Appellees,
v.
CITY OF WARREN, Defendant-Appellant.

Docket No. 128511. COA No. 259706.

Supreme Court of Michigan.

November 9, 2005.

On order of the Court, the application for leave to appeal the April 11, 2005 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. Among the issues to be considered, the Court of Appeals shall consider whether Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002), affects the class certification issue in this case. Pohutski held that § 7 of the governmental tort liability act, M.C.L. § 691.1407, does not permit a trespass-nuisance exception to governmental immunity, but ruled that this holding would be applied only to cases brought on or after April 2, 2002. In light of Pohutski, are issues relating to putative plaintiffs unnamed as of April 2, 2002 sufficiently disparate from issues relating to plaintiffs who were named as of April 2, 2002, such that certification of a single class containing both groups of plaintiffs would be inappropriate under MCR 3.501(A)(1)?

We do not retain jurisdiction.

MARILYN J. KELLY, J., would deny leave to appeal.