                             STATE OF MICHIGAN

                              COURT OF APPEALS



DAVID R. SANDERS and HEATHER H.                                  UNPUBLISHED
SANDERS,                                                         October 30, 2018

                Plaintiffs-Appellants,

v                                                                No. 338937
                                                                 Montmorency Circuit Court
TUMBLEWEED SALOON, INC.,1 and PAINTER                            LC No. 16-003949-NO
INVESTMENTS, INC., doing business as
CHAUNCEY’S PUB,

                Defendants-Appellees,

and

SHAWN SPOHN and ZACHARY PIERCE,

                Defendants.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

GLEICHER, J. (dissenting).

        The issue presented is whether plaintiffs David and Heather Sanders entered into an
attorney-client relationship with Samuel Meklir for the purpose of pursuing a claim under the
dramshop act. The majority highlights various evidentiary discrepancies that surfaced after
defendants Tumbleweed Saloon and Chauncey’s Pub challenged the timeliness of plaintiffs’
notice of their claim, and concludes that further fact-finding is required.

        The existence (or nonexistence) of an attorney-client relationship is a legal question
driven by facts. No material facts remain in dispute. Further factual development is
unnecessary, as reasonable minds could not differ regarding the existence or the scope of the
parties’ attorney-client relationship. I respectfully dissent.




1
    Tumbleweed is also known as the “Highway Bar” and the “Hi Way.”


                                             -1-
                                                   I

         The dramshop act, MCL 436.1801 et seq., governs claims alleging “negligent furnishing,
selling, or giving away of liquor.” Millross v Plum Hollow Golf Club, 429 Mich 178, 189; 413
NW2d 17 (1987). One provision of the act requires a plaintiff contemplating an action against a
retail licensee to “give written notice to all defendants within 120 days after entering an attorney-
client relationship for the purpose of pursuing a claim under this section.” MCL 436.1801(4).
Plaintiffs provided written notice of their intent to file claims against the Tumbleweed Saloon
and Chauncey’s Bar more than 120 days after consulting with Meklir. The drinking
establishments were awarded summary disposition based on their contention that plaintiffs’
meeting with Meklir triggered the running of the notice period.

        The majority is certainly correct that when reviewing a summary disposition motion
brought under MCR 2.116(C)(10), we must consider the evidence in the light most favorable to
the nonmoving party, refrain from making our own factual findings, and credit the nonmovants
with the benefit of all reasonable and supportive inferences flowing from the evidence. But this
is not a run-of-the-mill (C)(10) motion, which asserts that the moving party is entitled to
judgment as a matter of law. Rather, defendants’ motion for summary disposition presents a
preliminary legal question: did plaintiffs enter into an attorney-client relationship with Meklir for
the purpose of pursuing a claim under the dramshop act? Like other preliminary legal
questions—for example, whether a governmental entity is entitled to immunity—facts underlie
the legal inquiry. Preliminary legal issues are usually resolved by judges, not juries. When
material facts relevant to a preliminary legal question are in dispute, the trial judge resolves the
factual questions after an evidentiary hearing. See Dextrom v Wexford Co, 287 Mich App 406,
431-432; 789 NW2d 211 (2010).2 If no material facts are in dispute, “or if reasonable minds
cannot differ regarding the legal effect of the facts,” a preliminary legal question is strictly one of
law. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006) (cleaned
up).3 Whether plaintiffs formed an attorney-client relationship with Meklir for the purpose of
pursuing a dramshop act claim is a preliminary legal question capable of resolution by the court.

        The circuit court has already considered the evidence the majority proposes for
reconsideration (or expansion) at an evidentiary hearing. After reviewing the presuit letter
Meklir sent to Tumbleweed, Meklir’s postsuit affidavit, and plaintiffs’ deposition testimonies,
the trial court concluded that an attorney-client relationship existed when Meklir sent the letter.
The court did not clearly err in resolving this legal question. I perceive no need for further fact
finding, as the material evidence supports only one additional, interrelated conclusion: that



2
 The majority does not make it clear whether the additional fact-finding it orders is to be made
by the judge or a jury.
3
  This opinion uses the new parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


                                                 -2-
Meklir knew or should have known that plaintiffs had a potential dramshop action when he met
with them at his office.

                                                II

       The facts material to the existence and scope of plaintiffs’ attorney-client relationship
with Meklir are either not in dispute, or correctly were deemed immaterial by the trial court. The
majority expounds on several immaterial facts, such as David Sanders’s denial of having seen
Meklir’s letter. I recapitulate the material facts in full because they demonstrate that the trial
court got it right

       Plaintiff David Sanders was badly beaten by two men. Viewed in the light most
favorable to David, the evidence supports that his assailants were visibly intoxicated at the time
they were served alcohol in defendant dramshops. David learned the names of the men who
attacked him within a few days after the beating.

        About two months later, David and Heather Sanders consulted attorney Samuel Meklir, a
specialist in personal injury litigation, in Meklir’s Southfield office. After his meeting with the
Sanders, Meklir wrote the following letter to the Tumbleweed Saloon:

               Please be advised that I represent Mr. David Sanders as a result of
       injuries he sustained while at the Highway Bar which occurred on December 2,
       2014.

               I understand that you have a videotaping system that would have recorded
       the activities, which occurred and during which, Mr. Sanders was injured.

                We believe that the video evidence, which is in your possession, would be
       critically important.

              We would ask that the tapes, discs, or digital storing device the events are
       kept on, be preserved and not subject to spoliation.

               Our firm would be willing to view the information at your convenience.

               I thank you in advance for your cooperation. [Emphasis added.]

       Here is David’s deposition testimony regarding his consultation with Meklir:

               Q. . . . But this firm that is representing you now is not the first firm you
       hired, is it?

               A. I’m not sure.

               Q. Didn’t you hire a firm down in Southfield?

               A. Yeah. They’re the ones that recommended these guys.

               Q. Okay. Who is the firm you hired down in Southfield?
                                                -3-
       A. That I couldn’t tell you at this point in time. I don’t recall.

       Q. Maybe I can.

       A. Oh, it was - -

       Q. Sommers Schwartz, wasn’t it?

       A. Yes.

       Q. And you hired Samuel Meklir, didn’t you?

       A. Samuel Meklir is the one that referred us to that - - to him yes.

       Q. But you retained Samuel Meklir initially?

        A. I didn’t retain - - I didn’t retain him. I didn’t sign no papers with him.
I didn’t retain nothing with him.

       Q. You never retained him?

       A. No. I talked to him, but that was it.

       Q. Well, he wrote a letter to Tumbleweed saying that you had retained
him to pursue a case against Tumbleweed. Are you aware of that?

       A. I didn’t - - no; I’m not aware of that, no.

        Q. Do you dispute that - - do you dispute Mr. Meklir - - Attorney Meklir,
that you did not retain him?

        A. I did not - - not that I’m aware of we did not retain him. I don’t recall
signing any papers with him. I remember going down and seeing him, and he
said not to sign any papers at this time.

                                      * * *

      A. I didn’t - - yeah. I didn’t - - I didn’t hire him. I didn’t sign no papers
with Mr. Meklir.

       Q. Okay. But you were not injured at the Tumbleweed Bar, were you?

       A. No.

       Q. How did he learn that; do you know?

        A. I told you I went down and seen Mr. Meklir. I talked to Mr. Meklir,
but I did not sign any papers with him.


                                         -4-
       Q. What did you tell him?

      A. I explained what happened to him; what - - the whole situation
happened there.

       Q. What did you tell him specifically?

       A. I don’t remember what I told him specifically, to be honest with you.

       Q. You don’t?

       A. No, I don’t.

       Q. How did you learn his name?

       A. He’s my wife’s lawyer.

       Q. Heather?

       A. Heather.

Here is Heather Sanders’s testimony regarding the same meeting:

       Q. Okay. Is Mr. Meklir the one . . . that represented you . . . through your
daughter in the birth case?

       A. Yes.

       Q. Okay. And did you and David retain him to help you out in this case?

       A. We basically worked our way up here. He showed us where to go,
who to see.

       Q. But you initially went to see him; right?

       A. Yes.

       Q. Did you retain him?

       A. No.

      Q. Okay. Do you know why Mr. Meklir would have written a letter to the
Tumbleweed saying that he was retained by - - by you and David?

       A. We went in to see him to get things going and all that, but when he
looked at the case it wasn’t - - the travel time and him taking the time up here
wasn’t worth - -

       Q. Wasn’t worth it for him?

                                        -5-
                A. Yeah.

                Q. Well, do you know why he would say that - - why he would write a
       letter indicating that you had retained him?

                A. I probably - -

                Q. Have you seen the letter?

                A. He probably did. I just don’t recall at the time.

                                                  * * *

                Q. Yeah, the “Please be advised that I represent Mr. Sanders”, do you see
       that?

                A. Okay.

                Q. Yeah. Do you dispute that?

                A. No.

               Q. Okay. Do you see anything else in the letter that, to your knowledge is
       glaringly inaccurate?

                A. There is no video evidence that we have. [Emphasis added.]

        After the bars filed motions for summary disposition, Meklir signed an affidavit averring
in relevant part:

               5.     Following our conversations, I informed the Sanders that I would
       not be taking the case or representing them.

                6.       As a favor, I sent a letter regarding the preservation of security
       tapes.

              7.         No retainer agreement was ever drafted or signed regarding this
       incident.

               8.     At no time did I ever represent the Sanders regarding the personal
       injury claim that involved the assault on Mr. Sanders.

        David Sanders testified that he “explained what happened . . . the whole situation . . .”
during his meeting with Meklir. Meklir knew that the Sanders had consulted him regarding a
“personal injury claim that involved the assault on Mr. Sanders” at a bar. This evidence
establishes that plaintiffs shared with Meklir the facts detailed in the majority opinion, including
Spohn’s behavior at Chauncey’s after his alcohol supply had been curtailed. David Sanders
never disavowed that Meklir represented him, at least initially, with regard to this claim:


                                                 -6-
               Q. Yeah, the “Please be advised that I represent Mr. Sanders”, do you see
       that?

               A. Okay.

               Q. Yeah. Do you dispute that?

               A. No.

               Q. Okay. Do you see anything else in the letter that, to your knowledge is
       glaringly inaccurate?

               A. There is no video evidence that we have.

These are the material facts. They support only one reasonable conclusion: plaintiffs entered
into an attorney-client relationship with Meklir for the purpose of pursuing a dramshop claim.
The circuit court expressly determined that during their meeting in Southfield, plaintiffs had an
attorney-client relationship with Meklir, and implicitly found that their meeting was for the
purpose of pursuing a claim under the dramshop act. I discern no clear or legal error.

                                                III

        A few preliminary points bear mention. First, no formal contract is required to create an
attorney-client relationship. Rather, “[t]he employment is sufficiently established when it is
shown that the advice and assistance of the attorney are sought and received in matters pertinent
to his profession.” Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Sch, 455 Mich 1, 11; 564
NW2d 457 (1997), citing 7 Am Jur 2d, Attorneys at Law, §118, pp 187-188. That Meklir was
not formally retained is irrelevant.

        Second, Meklir did not need plaintiffs’ permission to send the letter. In writing to one of
the drinking establishments, Meklir acted as an agent for plaintiffs. His authority to act on their
behalf was not limited to what they may have expressly authorized him to do. According to
Slocum v Littlefield Pub Sch Bd of Ed, 127 Mich App 183, 194; 338 NW2d 907 (1983):

               Agents have the implied power to carry out all acts necessary in executing
       the principal’s expressly conferred authority. Whether the act in question is
       within the authority granted depends upon the act’s usual or necessary connection
       to accomplishing the purpose of the agency. [Id. (cleaned up).]

For example, the “authority to act on behalf of a principal may include the ability to undertake
acts necessary to ensure service and to provide notice.” Russell v Detroit, 321 Mich App 628,
641; 909 NW2d 507 (2017). Therefore, plaintiffs’ claim that they did not specifically authorize
Meklir to send the letter is irrelevant.

        Third, most of the averments in Meklir’s self-serving affidavit are also immaterial.
Whether Meklir thought he had formed an attorney-client relationship with plaintiffs does not
matter. “In determining whether an attorney-client relationship exists, . . . the focus is on the
client’s subjective belief that he is consulting a lawyer in the lawyer’s professional capacity and

                                                -7-
his intent is to seek professional legal advice.” Grace v Ctr for Auto Safety, 72 F3d 1236, 1242
(CA 6, 1996) (cleaned up). Meklir’s post-hoc statements that he sent the letter as “a favor” and
that he did not “represent” plaintiffs, do not refute that plaintiffs visited him not to engage in idle
chit-chat, but to obtain legal advice. Thus, the facts that (1) plaintiffs and Meklir had no retainer
agreement, (2) plaintiffs did not specifically or expressly authorize Meklir to write to
Tumbleweed, and (3) Meklir ultimately decided to decline representation due to time or location
constraints, are not facts material to the legal question at the heart of defendants’ summary
disposition motion.

         The majority highlights that Meklir’s post-lawsuit affidavit demonstrates that he and
plaintiffs never reached a “meeting of the minds” regarding representation and posits that his
letter stating otherwise should be ignored. Despite claiming to represent David Sanders in that
letter and in the same breath requesting access to video evidence, Meklir’s affidavit asserts the
opposite—that he actually refused to represent plaintiffs after meeting with them. Meklir’s
dodging and weaving does not create a material fact question regarding the legal issue at the
heart of this dispute. When considering the material evidence, reasonable minds could not differ
as to the ultimate conclusion that as a matter of law, Meklir and plaintiffs entered into an
attorney-client relationship for the purpose of pursing a dramshop action.

        The majority rejects that Meklir’s letter evidences an attorney-client relationship,
insisting that unlike the “testimonial” evidence Meklir provided in his affidavit, the letter is
consistent with “carelessness or a unilateral act.” That is a stretch, in my view. And the trial
court agreed when it decided to reject the averment. As the finder of preliminary facts relevant
to legal determinations, the trial court’s view prevails unless it is clearly erroneous. It is not.

        Meklir’s affidavit does not state that he acted “carelessly” or “unilaterally” in declaring
that he “represented” plaintiffs and sought video evidence on their behalf. The majority permits
Meklir to contradict and disavow the statement in his letter, holding that the circuit court must
accept Meklir’s affidavit and disregard the letter. Abundant Michigan caselaw holds that a
witness may not create a factual dispute by submitting an affidavit that contradicts his prior
testimony. See Dykes v William Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d 440
(2001). It follows that a question of fact cannot be created by an affidavit completely at odds
with a witness’s recorded words, whether sworn or not—particularly when the sworn testimony
offers no explanation for the prior statement. The trial court reached the same conclusion.

         But in the end, it does not matter. Even disregarding the “I represent” statement, the
evidence establishes that plaintiffs met with Meklir for the purpose of pursuing a dramshop
claim. When plaintiffs consulted Meklir, all three knew that David Sanders had been beaten by
two intoxicated men who were served alcohol at the Tumbleweed and Chauncey’s. During their
depositions plaintiffs did not claim to have met with Meklir to discuss an auto accident or a
medical malpractice case or anything else. They told him the story, and Meklir wrote a letter
seeking evidence to corroborate it. Plaintiffs’ awareness of these facts suffices to create a
presumption that they consulted Meklir to discuss a potential dramshop claim, and none of the
evidence undercuts or weakens this presumption. Nothing more is necessary to satisfy the
statute.



                                                 -8-
       This is not the first case in which parties have disputed whether an initial meeting with
counsel was for the purpose of pursuing a dramshop claim, starting the 120-day clock. One such
case reached the Supreme Court, which spelled out the guiding legal precepts in a brief order.
The majority attempts to distinguish Langrill v Stingers Lounge, 471 Mich 926; 689 NW2d 228
(2004), but I find the effort unconvincing.

        Langrill arose from an auto accident. Langrill v Stingers Lounge, 261 Mich App 698,
699; 683 NW2d 225 (2004). The defendant driver pleaded guilty to operating a motor vehicle
while under the influence of liquor. Id. at 700 n 1. The plaintiff sued the driver and obtained a
large default judgment. Id. at 700. The plaintiff then notified Stingers of her intent to file a
dramshop action, and amended her complaint to add this claim. The trial court granted summary
disposition to Stingers because the plaintiff’s notice was sent beyond the 120-day period. Id.
This Court reversed, observing that the plaintiff’s “retainer agreement expressly stated that she
retained her attorney for the purpose of an auto negligence claim, not a dramshop action.” Id. at
702.

        The Supreme Court vacated this Court’s order, remanding to the trial court for further
proceedings. Langrill, 471 Mich at 926. The Court explained that “[b]ecause plaintiff did not
present any evidence to the contrary, there is a presumption that the attorney-client relationship
she entered into with her first attorney, who filed the original complaint in this matter, included
the purpose of pursuing a claim under MCL 436.801.” Id. The Supreme Court directed the trial
court to grant summary disposition to the defendant if the court found that “sufficient
information for determining that defendant might be liable under MCL 436.1801” was known or
reasonably could have been known “within 120 days of the beginning of that first attorney-client
relationship.” Id.4

        Langrill is on-point. Meklir’s letter stated that Meklir “represent[ed]” David “as a result
of injuries he sustained while at the Highway Bar[.]” Let’s assume that Meklir inadvertently
used the term “represent,” and join the majority in ignoring it. The balance of Meklir’s letter
demonstrates that he either understood that a dramshop action was possible, or should have
reached that realization. Meklir’s request for preservation of video evidence of the events inside
the bar strongly supports the former, as the video would potentially provide evidence that
David’s assailants were visibly impaired when they were served alcohol. There was no other
reason to obtain the videotape. But regardless, Meklir should have known that a dramshop
action was an option assuming the evidence supported it, and that is enough under Langrill.




4
  This holding places on the consulted attorney an obligation to be aware of the elements of a
dramshop claim and the notice requirement. Under different circumstances, a potential plaintiff
may not know that a potential defendant was intoxicated or had been served alcohol while
visibly impaired. Theoretically, this information could emerge only during discovery. In those
circumstances, the attorney would have no obligation to provide notice at the time of the first
consultation. Here, however, the individual defendants’ inebriation and the involvement of the
drinking establishments were known from the outset.


                                                -9-
        Plaintiffs’ testimonies further buttress the presumption that their attorney-client
relationship with Meklir was for the purpose of pursuing a dramshop claim. Neither plaintiff
mentioned another reason for the consultation. David admitted that he “explained what
happened” to Meklir: “the whole situation [that] happened there.” Heather recalled that she and
her husband “went in to see [Meklir] to get things going and all that,” and that Meklir “showed
us where to go, who to see.” Plaintiffs met with Meklir because Meklir is a lawyer and they
wanted legal advice. Meklir not only gave them advice; he took an action on their behalf.

        This evidence is consistent with only one reasonable and material inference: Meklir had
sufficient information to understand that plaintiffs had a potential cause of action under the
dramshop act. Whether Meklir intended to represent plaintiffs for the long-haul is really beside
the point. He had a relationship with them of attorney and client during a meeting about a
dramshop claim. I would affirm the circuit court.



                                                           /s/ Elizabeth L. Gleicher




                                             -10-
