Order Michigan Supreme Court
Lansing, Michigan
November 9, 2005 Clifford W. Taylor,
Chief Justice
128511 Michael F. Cavanagh
Elizabeth A. Weaver
ROBERT HILL, SHIRLEY HILL, TIMOTHY Marilyn Kelly
Maura D. Corrigan
CARLSON, RANDALL KOLODZIEJSKI, Robert P. Young, Jr.
LINDA KOLODZIEJSKI, WILLIAM Stephen J. Markman,
Justices
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 SC: 128511
COA: 259706
Macomb CC: 2000-001823-CZ
CITY OF WARREN,
Defendant-Appellant.
_________________________________________/
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 (2002),
affects the class certification issue in this case. Pohutski held that § 7 of the
governmental tort liability act, MCL § 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.
KELLY, J., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 9, 2005 _________________________________________
s1102 Clerk